Akhil bhartiya Soshit Sangh vs UOI

http://JUDIS.NIC.IN SUPREME COURT OF INDIA of 62

PETITIONER:AKHIL BHARATIYA SOSHIT KARAMCHARI SANGH (RAILWAY)REPRESENTED

Vs.

RESPONDENT:UNION OF INDIA AND ORS.

DATE OF JUDGMENT14/11/1980

BENCH:KRISHNAIYER, V.R.BENCH:KRISHNAIYER, V.R.PATHAK, R.S.REDDY, O. CHINNAPPA (J)

CITATION: 1981 AIR 298 1981 SCR (2) 185 1981 SCC (1) 246 CITATOR INFO : E&R 1985 SC1495 (19,75) F 1987 SC 537 (22) RF 1987 SC 990 (16) RF 1988 SC 959 (12) RF 1991 SC1902 (36) R 1991 SC2288 (12) RF 1992 SC 1 (90,125)

ACT: Constitution of India, 1950-Arts. 16, 46 and 335-Scopeof-Reservation of posts under the State in favour ofScheduled Castes and Scheduled Tribes-Carry forward ofunfilled posts for three years-validity of-

HEADNOTE: In so far as the initial recruitment and laterpromotion to classes II, III and IV are concerned, theRailway Administration provided for reservation of certainpercentage of vacancies for candidates belonging to theScheduled Castes and Scheduled Tribes. Since, despite thespecial provision the intake of these communities into theRailway Services continued to be negligible furtherconcessions and relaxations were offered from time to timeto members belonging to the Scheduled Castes and ScheduledTribes. Even so, in many cases the vacancies reserved forthem remained unfilled. Yet another step taken by theRailway Administration to keep open the reserved vacancieswas to adopt a policy of "carry forward" of the unfilledreserved vacancies for at least three years. In obedience to the policy decision of the Ministry ofHome Affairs, the Railway Board issued certain directivesdesigned to protect and promote the interest of members ofthe Scheduled Castes and Scheduled Tribes in the matter oftheir employment in the Railway Administration. The policydirective of reserving certain percentage of posts in favourof these communities having not proved effective, theRailway Board altered the rules "with a view to securingincreased representation of Scheduled Castes and ScheduledTribes in the Railway Services" (Annexure D). The RailwayBoard authorised the recruiting bodies to slur over lowplaces obtained by Scheduled Castes and Scheduled Tribes


candidates except where it was found that the minimumstandard necessary for the maintenance of efficiency of theadministration had not been reached. The appointingauthorities were directed to give additional training andcoaching to the recruits so that they might come up to thestandard of other recruits appointed alongwith them.Likewise where direct recruitment, otherwise than byexamination, was provided for, the Railway Board directedthe selection of Scheduled Castes and Scheduled Tribescandidates fulfilling a lower standard of suitability thanfrom other communities, so long as the candidates had theprescribed minimum educational and technical qualificationsand the appointing authorities were satisfied that thelowering of standards would not unduly affect themaintenance of efficiency of administration. In the case of selection posts the Railway Boarddecided that promotions from class IV to class III and fromclass III to class II were of the nature of directrecruitment and the prescribed quota of reservation forScheduled Castes and Scheduled Tribes should be provided asin direct recruitment. This reser-186vation was confined to ’selection posts’. In regard tofilling of "general posts" in class III it was stated thatthey were in the nature of direct recruitment and thereservation for Scheduled Castes and Scheduled Tribes asapplicable to direct recruitment should be applied.(Annexure F). In 1969 the Railway Board further revised their policyin regard to the reservation and other concessions tothe Scheduled Castes and Scheduled Tribes candidates inposts filled by promotion (Annexure H). The circular statedthat in promotion by selection from class III to class II,if a member of the Scheduled Castes and Scheduled Tribes waswithin the zone of eligibility the employee would be givenone grading higher than the grading otherwise assignable tohim on the basis of his record of service. In April, 1970 the percentage of vacancies to bereserved for Scheduled Castes and Scheduled Tribes wasraised from 121/2% and 5% to 15% and 71/2% respectively(Annexure I). By the same order the "carry forward" rule wasaltered from 2 to 3 years. In 1973 the Railway Board issued a directive statingthat the quota of 15% and 71/2% for Scheduled Castes andScheduled Tribes may be provided promotion to thecategories and posts in classes I, II, III and IV filled onthe basis of the seniority-cum-suitability provided theelement of direct recruitment to those grades does notexceed 50% (Annexure K). In August, 1974 the Railway Board further directed thatif the requisite number of Scheduled Castes and ScheduledTribes candidates were not available for being placed on thepanel in spite of the various relaxations the best amongthem i.e. those who secure highest marks should be earmarkedfor being placed on the panel to the extent vacancies hadbeen reserved in their favour. The Scheduled Castes andScheduled Tribes candidates so earmarked might be promotedad hoc for a period of six months against the vacanciesreserved for them. During the period of six months theadministration was asked to give them all facilities forimproving their knowledge and for coming upto the requisitestandard. The procedure was required to be applied in casesof promotion to the posts filled on the basis of seniority-cum-suitability (Annexure N). A further modification to the then existing rules was


made by Annexure ’O’ which stated that "reservations inposts filled by promotion under the existing scheme would beapplicable to all grades or services where the element ofdirect recruitment, if any, does not exceed 66 2/3% asagainst 50% as at present". It was contended on behalf of the petitioners thatScheduled Castes cannot be a favoured class in the publicservices because (i) they are "castes" and cannot claimpreference qua castes unless specially saved by Article16(4) which speaks of "class" and not "castes", (ii) thatArticle 16(4) could not apply to promotional levels and(iii) efficiency of administration envisaged by Article 335had been jeopardised by the impugned circulars whichfomented frustration among the civil services and producedinefficiency by placing men of lower efficiency and lessexperience in higher posts.187A preliminary objection was raised that since the firstpetitioner was an unrecognised union, it was not a "personaggrieved" and so its petition was unsustainable. Dismissing the petitions [Per majority Krishna Iyer and Chinnappa Reddy, JJ,Pathak J. concurring in the result with reservation oncertain questions] There is nothing illegal or unconstitutional in theimpugned orders.[Per Krishna Iyer, J] The argument that since the first petitioner was anunrecognized association the petition is not sustainablemust be overruled because whether the petitioners belongedto a recognised union or not, the fact remains that a largebody of persons with a common grievance exists and theyapproached this Court under Article 32. Our currentprocessual jurisprudence is broad-based and people orientedand envisions access to justice through "class actions","public interest litigation" and "representativeproceedings". The narrow concept of cause of action andperson aggrieved and individual litigation is becomingobsolescent in some jurisdictions. [224 G-H] The well settled position in law is that the State mayclassify, based upon substantial differentia, groups orclasses and this process does not necessarily spellviolation of Articles 14 to 16. Therefore, in the presentcase if the Scheduled Castes and Scheduled Tribes stand on asubstantially different footing they may be classifiedgroupwise and treated separately. [232 B-C] The fundamental right of equality of opportunity has tobe read as justifying the categorisation of Scheduled Castesand Scheduled Tribes separately for the purpose of "adequaterepresentation" in the services under the State. The objectis constitutionally sanctioned in terms as Article 16(4) and46 specificate. The classification is just and reasonable.[233 G-H] Apart from Article 16(1), Article 16(2) expresslyforbids discrimination on the ground of caste and here thequestion arises as to whether the Scheduled Castes andTribes are castes within the meaning of Article 16(2).Assuming that there is discrimination, Article 16(2) cannotbe invoked unless it is predicated that the Scheduled Castesare "castes". There are sufficient indications in theConstitution to suggest that the Scheduled Castes are notmere castes. They may be something less or something moreand the time badge is not the fact that the members belongto a caste but the circumstance that they belong to anindescribably backward human group. [234 A-C]


Articles 14 to 16 form a Code by themselves and containa constitutional fundamental guarantee. The DirectivePrinciples which are fundamental in the governance of thecountry enjoin upon the State the duty to apply thatprinciple in making laws. Article 46 obligates the State thepromote with special care the educational and economicinterests of the weaker sections of the people and inparticular of the Scheduled Castes and the Scheduled Tribes.Article 46 read with Article 16(4) makes it clear that theexploited lot of the harijan groups in the past shall beextirpated with special care by the State. [210 F; 211 A-C]188 At the same time reservations under Article 16(4) andpromotional strategies under Article 46 should not be usedto imperil administrative efficiency in the name ofconcessions to backward classes. The positive accent ofArticle 335 is that the claims of these communities toequalisation of representation in services under the Stateshall be taken into consideration. The negative element ofthis Article is that measures taken by the State pursuant tothe mandate of Articles 16(4), 46 and 335 shall beconsistent with and not subversive of the maintenance ofefficiency of administration. [211 D-F] Under Article 341, Scheduled Castes become such only ifthe President specifies any castes, races or tribes or partsor groups within castes, races or tribes for the purpose ofthe Constitution. It is the socioeconomic backwardness of asocial bracket that is decisive and not mere birth in acaste. [212 A] Annexure F relates only to selection posts and has beenexpressly upheld in Rangachari’s case. The quantum ofreservation is not excessive; the field of eligibility isnot too unreasonable; the operation of the reservation islimited to selection posts and no relaxation ofqualifications is written into the circular except thatcandidates of the Scheduled Castes and Scheduled Tribescommunities should be judged in a sympathetic manner.Moreover administrative efficiency is secure because thereis a direction to give such staff additional training andcoaching, to bring them upto the standard of others. [239 F-G] There is no vice in giving one grade higher than isotherwise assignable to an employee. based on the record ofhis service rendering the promotional prospects unreasonablebecause this concession is confined to only 25% of the totalnumber of vacancies in a particular grade or post filled ina year and there is no rampant vice of every harijan jumpingover the heads of others. More importantly, this is only anadministrative device of showing a concession or furtheranceof prospects of selection. Even as under Articles 15(4) and16(4) lesser marks are prescribed as sufficient for thesecommunities or extra marks are added to give them anadvantage, the regrading is one more method of boosting thechances of selection of these communities. The prescribedminimum qualification and standard of fitness are continuedeven for Scheduled Castes and Scheduled Tribes underAnnexure H. [240 B-D] Annexure I is unexceptionable since all that it does isto readjust the proportion of reservation in conformity withthe latest census. [240 E-F] Similarly "carry forward" raised from two years tothree years cannot be struck down. There is no prospect,even if the vacancies are carried forward, of sufficientnumber of Scheduled Castes and Scheduled Tribes candidatesturning out to fill them. Moreover, there is a provision

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that if a sufficient number of candidates from thesecommunities are not found, applicants from the unreservedcommunities would be given appointment provisionally. Afterthree years these vacancies cease to be reserved. [240 G-A] Even in Devadasan’s case, this Court has laid down theproposition that under Article 16(4) reservation of areasonable percentage of posts for member of the ScheduledCastes and Scheduled Tribes is within the competence of theState. What was struck down was that the reservations shouldnot be so excessive as to create a monopoly or to disturbunduly the legitimate claims of other communities. By thisrule there is no danger of the total vacancies189being gobbled up by the harijan/girijan groups virtuallyobliterating Article 16(1). The problem of giving adequaterepresentation to backward classes under Article 16(4) is amatter for the Government to consider, bearing in mind theneed for a reasonable balance between the rival claims. [241B-F] Subject to the condition that the carry forward ruleshall not result in any given year in the selection orappointment of Scheduled Castes and Scheduled Tribescandidates considerably in excess of 50%, the Annexure I isupheld. [242 E] There is nothing unreasonable or wrong in Annexure J.Once the parameters of reservation are within the frameworkof the fundamental rights, minute scrutiny of everyadministrative measure is not permissible. [242 F] Annexure K is beyond reproach. As between selection andnon-selection posts the role of merit is functionally morerelevant in the former than in the latter. If in selectingtop officers, posts could be reserved for Scheduled Castesand Scheduled Tribes with lesser merit it cannot rationallybe argued that for the posts of peons, or lower divisionclerks reservation would spell calamity. The part thatefficiency plays is far more in the case of higher poststhan in the appointments to the lower posts. [243 D] Dilution of efficiency caused by the minimal inductionof a small percentage of reserved candidates cannot affectthe over-all administrative efficiency significantly.Moreover, care has been taken to give in-service trainingand coaching to correct the deficiencies. [244 B-C][Chinnappa Reddy, J concurring] The preamble to the Constitution of India proclaims theresolution of the people to secure to all its citizensjustice, social, economic and political, equality of statusand opportunity and to promote fraternity assuring thedignity of the individual. The right to equality before thelaw and equality of opportunity in the matter of publicemployment are guaranteed as fundamental rights. The Stateis enjoined upon by the Directive Principles to promote thewelfare of the people, to endeavour to eliminateinequalities in status, facilities and opportunities andspecial provisions have been made, in particular, for theprotection and advancement of the Scheduled Castes andScheduled Tribes in recognition of their low social andeconomic status and their failure to avail themselves of anyopportunity of self-advancement. In short the constitutionalgoal is the establishment of a socialist democracy in whichjustice-economic, social and political is secure and all menare equal and have equal opportunity. Inequality whether ofstatus, facility or opportunity is to end, privilege is tocease and exploitation is to go. The under-privileged, thedeprived and the exploited are to be protected and nourishedso as to take their place in an egalitarian society. State


action is to be towards those ends. It is in this contextthat Article 16 has to be interpreted when State action isquestioned as contravening Article 16. [255 A-F] A Constitution, such as ours, must receive generousinterpretation so as to give an its citizens the fullmeasure of justice so proclaimed. While interpreting theConstitution the expositors must concern themselves not somuch with words as with the spirit and sense of theConstitution which could be found in the Preamble theDirective Principles and other such provisions. [256 G]190 At one time it was assumed that because the fundamentalrights are enforce able in a court of law while DirectivePrinciples are not, the former were superior to the latter,that way of thinking has become obsolete. The currentthinking is that while Fundamental Rights are primarilyaimed at assuring political freedom to the citizens againstexcessive State action, the Directive Principles are aimedat securing social and economic freedoms by appropriateState action. The Directive Principles are madeunenforceable in a limited sense because no Court can compela Legislature to make laws. But that does not mean that theyare less important than Fundamental Rights or that they arenot binding on the various organs of the State. They are allthe same fundamental in the governance of the country and itshall be the duty of the State to apply these principles inmaking laws. The Directive Principles should serve theCourts as a Code of Interpretation. Every law attacked onthe ground of infringement of Fundamental Right should beexamined to see if the impugned law does not advance one orother of the Directive Principles or if it is not in thedischarge of some of the undoubted obligations of the Statetowards its citizens flowing out of the Preamble, theDirective Principles and other provisions of theConstitution. [257 A-G] Reservation of posts and all other measures designed topromote the participation of the Scheduled Castes andScheduled Tribes in public services at all levels are anecessary consequence flowing from the Fundamental Rightsguaranteed by Article 16(1). This very idea is emphasizedfurther by Article 16(4) which is not in the nature of anexception to Article 16(1) but a facet of that Article. Inthe State of Kerala v. N.M. Thomas the court has repudiatedthe theory propounded in earlier cases that Article 16(4) isin the nature of an exception to Article 16(1). It is nolonger correct to say that laws aimed at achieving equalityas permissible exceptions. Such laws are necessary incidentsof equality. [258 D-F] Minister of Home Affairs v. Fisher [1979]3 All E.R. 21,State of Kerala & Anr. v. N.M. Thomas & Ors. [1976] 1 S.C.R.906 @ 930-933 and The General Manager, Southern Railway v.Rangachari [1962]2 S.C.R. 586 referred to. The figures quoted from the report of the Commissionerof Scheduled Castes and Scheduled Tribes for the year 1977-78 reveal how slow and insignificant the progress achievedby the members of these communities in the matter ofparticipation in the Railway Administration had been. Farfrom acquiring any monopolistic or excessive representationover any category of posts these communities are nowherenear being adequately represented. Neither the reservationrule nor the "carry forward" rule for these years hasresulted in any such disastrous consequence. Therefore, thecomplaint of the petitioners that the circulars had resultedin excessive representation of these communities is withoutfoundation generally or with reference to any particular


year. [246 D-G] There is no substance in the argument that efficiencyof administration would suffer if the Railway Board’sdirectives were followed in the matter of reservations andpromotions. The Railway Board had stated that minimumstandards were insisted upon for every appointment and inthe case of candidates wanting in requisite standards ofefficiency those with higher marks were given specialintensive training to enable them to come up to therequisite standards. In the case of posts which involvedsafety of movement of trains there was no191relaxation of standards in favour of candidates belonging toScheduled Castes and Scheduled Tribes and they were requiredto pass the same rigid tests as others.[265 A-B] There is no fixed ceiling to reservation orpreferential treatment in favour of the Scheduled Castes andScheduled Tribes though generally reservation may not be farin excess of 50% about which there is no rigidity. Everycase must be decided on its own facts. [265 E] There is nothing illegal or unconstitutional in any oneof the impugned orders and circulars. [265 G][Pathak J concurring in the result with reservation oncertain questions.] Article 46 of the Constitution enjoins upon the Stateto treat with special care the educational and economicinterest of the weaker sections of the people and inparticular the Scheduled Castes and Scheduled Tribes. One ofthe modes in which the economic interest of thesecommunities can be promoted is by reservation ofappointments or posts in their favour in services under theState where they are not adequately represented. By virtueof Article 16(4), when the State intends to make reservationof appointments or posts in favour of these communities inservices under it nothing in Article 16 prevents it fromdoing so. Article 335 provides that claims of the members ofthese communities shall be taken into consideration in themaking of appointments to services and posts in connectionwith the affairs of the Union or a State. But suchconsideration must be consistent with the maintenance ofefficiency of administration which is regarded as paramount.It is dictated by the common good and not of a mere sectionof the people. Therefore, whatever is done in consideringthe claims of Scheduled Castes and Scheduled Tribes must beconsistent with the need for maintenance of efficiency ofadministration. This Article contains a single principle,namely, the advancement of Scheduled Castes and ScheduledTribes but through modes and avenues which must not detractfrom the maintenance of an efficient administration. [250 B-H] For securing an efficient administration the governingcriterion in the matter of appointments to posts under theState is excellence and the emphasis is solely on quality.The selection is made regardless of religion, race, caste,sex, descent, place of birth or residence. However, a quotaof the posts may be reserved in favour of backward citizens.But the interests of efficient administration require thatat least half the total number of posts be kept open toattract the best of the nation’s talent. If it was otherwisean excess of the reserved quota would convert the Stateservice into a collective membership predominantly ofbackward classes. The maintenance of efficiency ofadministration is bound to be adversely affected if generalcandidates of high merit are correspondingly excluded fromrecruitment. Viewed in that light the maximum of 50% for

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reserved quota appears fair and reasonable, just andequitable violation of which would contravene Article 335.[251 B-D] M. R Balaji v. State of Mysore [1963] Supp. 1 S.C.R.439, 470, T. Devadasan v. Union of India [1964]4 S.C.R. 680and State of Kerala v. N. M. Thomas [1976]1 S.C.R. 906referred to.192

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition Nos. 1041-1044 of1980. (Under Article 32 of the Constitution) Shanti Bhushan, K. K. Venugopal, A. T. M. Sampath, P. NRamalingam and R. Satish for the Petitioner. Lal Narain Sinha, Att. General of India, M. K.Banerjee, Addl. Sol. Genl. and Miss A. Subhashini forRespondents Nos. 1-5. P. R. Mridul, P. H. Parekh, C. B. Singh, B. L. Verma,Rajan Karanjawal and Miss Vineeta Caprihan for theIntervener. K. B. Rohtagi and Praveen Jain for the Intervener. R. K. Garg and P. K. Jain for the Intervener. S. K. Bagga for the Intervener. Altaf Ahmed for the Intervener. S. Balakrishnan for the Intervener. P. H. Parekh for Respondent No. 6 in W.P. No. 1042/79. The following judgments were delivered:KRISHNA IYER. J.The Root Thought The abolition of slavery has gone on for a long time.Rome abolished slavery, America abolished it, and we did,but only the words were abolished not the thing. This agonising gap between hortative hopes and humandupes vis a vis that serf-like sector of Indian society,strangely described as Scheduled Castes and Scheduled Tribes(SCs and STs, for short), and the administrative exercisesto bridge this big hiatus by processes like reservations andother concessions in the field of public employment is thebroad issue that demands constitutional examination in theIndian setting of competitive equality before the law andtearful inequality in life. A fasciculus of directions ofthe Railway Board has been attacked as ultra vires and thecourt has to pronounce on it, not philosophically butpragmatically. "The philosophers have only interpreted theworld in various ways; the point is to change it" -this wasthe founding fathers’ fighting faith and serves asperspective-setter for the judicial censor.193The Backdrop The social backdrop to the forensic problem raised inthis litigation is best projected by lines of poetry quotedin Nehru’s Autobiography: Bowed by the weight of centuries he leans Upon his hoe and gazes on the ground, The emptiness of ages on his face, And on his back the burden of the world.The Problem The dynamics and dialectics of social justice vis a visthe special provisions of the Constitution calculated toaccelerate the prospects of employment of the harijans andthe girijans in the civil services with particular emphasison promotions of these categories in the Indian Railways


that, in all these cases, is the cynosure of judicialscrutiny, from the angle of constitutionality in the contextof the guarantee of caste-free equality to every person.Petitioners’ Challenge The gravamen of the constitutional accusation levelledin this bunch of quasi-class actions under Art. 32 of theConstitution and argued by a battery of counsel led by ShriShanti Bhushan, with heat and light, passion and reason, isthe heartless discrimination shown against vast numbers ofmembers employed by the Railway Administration through itspolicy directives, by bestowal of unconscionably ’pampering’concessions, at promotion levels, on these social bracketsbelonging to the historically suppressed SCs & STs, heedlessof over-all administrative efficiency in the Indian Railwaysand frustrating the promotional hopes of the larger humansegments of economically downtrodden senior members. Thefall-out of this ’benign discrimination’ of helping out theweakest sections has been to blow up, out of all proportionto the social realities, the ’backwardness’ syndrome so asembrace many politically powerful castes disguised asBackward Classes. This constitutional amulet, rooted largelyin caste, the petitioners lament, has been misused andapplied in educational and employment fields on anescalating scale. The perverted result is that a caste-rivennation is a spectre that haunts the land, pushing back thepatriotic prospect of a homogenised Indian Society ofcasteless equality and projecting instead the divisivealternative of a heterogeneous caste map of Bharat. Thefundamental failure of this sterile scheme of reservation-wise circumvention of the fundamental right to equality,ideologically and pragmatically speaking, has deepened thepathological condition of communalism besetting the Indianpolity194and split the have-nots into snarling camps-a consummationdisastrously contrary to the constitutional design ofabolition of socioeconomic inequality through activiststratagem of equalisation geared to actual attainment ofintegrated equality. Logically, the argument leads to the formulation thateach caste and community is bargaining politically forbigger bites of the educational-and-employment cake so muchso merit becomes irrelevant or takes a back seat and’backward’ birth brings a boon. The constitutionalstultification of an integrated India through misuse of’reservation’ power provided for in Arts. 15 and 16 meantfor the direct ’dalits’ the pollution, by the politicalExecutive, of our founding creed of an egalitarian order byplaying casteification politics and the morbid dilution of’backwardness’ marring the dream of a secular republic bythe nightmare of a feudal vivisection of the people-if thispicture drawn by some counsel be true, even in part, thebasic task of transforming the economic order through socialjustice will be baulked through destructive communaldisputes among the masses. Maybe, this may weaken the socialrevolution, leave an indelible stain and incurable wound onthe body politic and justify the censure by history of theengineers of our political power and electoral processes.Hearing the arguments of the petitioners one wonders, "Iscaste the largest political party ?" Has protectivediscrimination, so necessary in an insufferably unequalsociety, created a Frankenstein’s monster ? Have we no dynamic measures to drown social, economicand educational backwardness of whole masses except thetraditional self-perpetuating quasi-apartheidisation called


’reservation’ ? Surely, our democratic, secular socialistrepublic is no wane moon but a creative power rooted inequal manhood, an egalitarian reservoir of vast humanpotential, a demographic distribution of talent benumbed bybrahman centuries of social injustice but now seeking humanexpression under a new dispensation where ’chill penury’shall no longer ’repress their noble rage’. Caste, undoubtedly, in a deep-seated pathology toeradicate which the Constitution took care to forbiddiscrimination based on caste, especially in the field ofeducation and services under the State. The rulings of thiscourt, interpreting the relevant Articles, have hammeredhome the point that it is not constitutional to baseidentification of backward classes on caste alone qua caste.If a large number of castes masquerade as backward classesand perpetuate that division in educational campuses andpublic offices, the whole process of a caste-free societywill be reversed. We are not directly concerned withbackward classes as such, but with the provisionsameliorative of the195Scheduled Castes and the Scheduled Tribes. Nevertheless, wehave to consider seriously the social consequences of ourinterpretation of Art. 16 in the light of the submission ofcounsel that a vested interest in the caste system is beingcreated and perpetuated by over-indulgent concessions, evenat promotional levels, to the Scheduled Castes and theScheduled Tribes, which are only a species of castes. "Eachaccording to his ability" is being substituted by "eachaccording to his caste", argue the writ petitioners andunderscore the unrighteous march of the officials belongingto the SCs & STs over the humiliated heads of their seniorand more meritorious brothers in service. The after-math ofthe caste-based operation of promotional preferences isstated to be deterioration in the over-all efficiency andfrustration in the ranks of members not fortunate enough tobe born SCs & STs. Indeed, the ’inefficiency’ bogie was soluridly presented that even the railway accidents and otheroperational calamities and managerial failures wereattributed to the only villain of the piece viz., the policyof reservation in promotions. A constitutionally progressivepolicy of advantage in educational and official career basedupon economic rather than social backwardness was commendedbefore us by counsel as more in keeping with the anti-caste,pro-egalitarian tryst with our constitutional destiny. And,Shri Shanti Bhushan, at one stage, helped the court realisethe consequences of its verdict if it upheld the pamperingpackage of promotional preferences by warning us of runningbattles in the streets, a sort of caste-war, against birthbased ’privileges’ for the harijan-girijan millions.Our Approach Of course, judicial independence has one dimension, notfully realised by some friends of freedom. Threats of mobhysteria shall not deflect the court from its trueaccountability to the Constitution, its spirit and textbelighted by all the sanctioned materials The otherinvisible sacrifice of judicial independence relevant tothis case is the unwitting surrender to "the spirit of thegroup in which the accidents of birth or education oroccupation or fellowship have given us (judges) a place. Noeffort or revolution of the mind will overthrow utterly andat all times the empire of these subconscious loyalties." Wequote what the great Justice Cardozo has courageouslyconfessed : I have spoken of the forces of which judges


avowedly avail to shape the form and content of their judgments. Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and196 influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man whether he be litigant or judge...... The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by........... We shall never be able to flatter ourselves, in any system of judicial interpretation, that we have eliminated altogether the personal measures of the interpreter. In the moral sciences, there is no method or procedure which entirely supplants that subjective reason. We may figure the task of the judge, if we please, as the task of a translator, the reading of signs and symbols given from without. None the less, we will not set men to such a task, unless they have absorbed the spirit, and have filled themselves with a love, of the language they must read.The British echo of this judicial weakness is heard in Prof.Griffith’s words: These judges have by their education and training and the pursuit of their profession as barristers, acquired a strikingly homogeneous collection of attitudes, beliefs and principles, which to them represents the public interest. The emphasis on the subtle invasions from within uponfunctional autonomy and forensic objectivity mentioned byCardozo will be evident when we turn to the pathetic saga ofthe depressed classes, even today, painted by the otherside. The learned Attorney General, less militant but notless firm in his submissions, called all this a caricatureof the poignant facts of life and called upon us to assessthe facts with cold objectivity and warm humanity castingaside possible sympathies suggested by Justice Cardozo andProf. Griffith. We, as judges dealing with a socially charged issue ofconstitutional law, must never forget that the IndianConstitution is a National Charter pregnant with socialrevolution, not a Legal Parchment barren of militant valuesto usher in a democratic, secular, socialist society whichbelongs equally to the masses including the harijan-girijanmillions hungering for a humane deal after feudal colonialhistory’s long night. Granville Austin quotes profusely from the ConstituentAssembly proceedings to prove the goal of the IndianConstitution to be197social revolution. Radhakrishnan, representing the broadconsensus, said that India must have a ’socioeconomic revolution’ designed not only to bring about the real satisfaction of the fundamental needs of the common man, but to go much deeper and bring about ’a fundamental change in the structure of Indian society’.The Cultural Core of the Constitutional Protection: Let us get some glimpses of history to get a hang ofthe problem. ’In thy book record their groans’ may be theright quote to begin with. We cannot blink at the agony of


the depressed classes over the centuries condemned by allsocial reformers as rank irreligion and social injustice.Swami Vivekananda, for instance, stung by glaring socialinjustice, argued(2): The same power is in every man, to the one manifesting more, the other less. Where is the claim to privilege. All knowledge is in every soul, even in the most ignorant, he has not manifested it, but, perhaps he has not had the opportunity the environments were not, perhaps, suitable to him. When he gets the opportunity he will manifest it. The idea that one man is born superior to another has no meaning in Vedanta; that between two nations one is superior and the other inferior has no meaning whatsoever........ Men will be born differentiated; some will have more power than others. We cannot stop that.... but that on account of this power to acquire wealth they should tyrannies and ride roughshod over those, who cannot acquire so much wealth, is not a part of the law, and the fight has been against that. The enjoyment of advantage over another is privilege, and throughout ages the aim of morality has been its destruction............. Our aristocratic ancestors went on treading the common masses of our country under foot till they became helpless, till under this torment the poor, poor, people nearly forgot that they were human beings. They have been compelled to be merely hewers of wood and drawers of water for centuries, so much so, that they are made to believe that they are born198 as slaves, born as hewers of wood and drawers of water. With all our boasted education of modern times, if anybody says a kind word for them, I often find our men shrink at once from the duty of lifting them up, these poor downtrodden people. Not only so, but I also find that all sorts of most demoniacal and brutal arguments, culled from the crude ideas of hereditary transmission, and other such gibberish from the western world are brought forward in order to brutalise and tyrannies over the poor, all the more...... Aye, Brahmins, if the Brahmin has more aptitude for learning on the ground of heredity than the Pariah, spend no more money on the Brahmin’s education, but spend all on the Pariah. Give to the weak, for there all the gift is needed. Our poor people, these downtrodden masses of India, therefore, require to hear and to know what they really are. Aye, let every man and woman and child, without respect of caste or birth, weakness and strength, hear and learn that behind the strong and the weak, behind the high and the low, behind everyone, there is that Infinite Soul, assuring that infinite possibility and the infinite capacity of all to become great and good. Let us proclaim to every soul-’Arise, awake and stop not till the goal is reached. Arise, awake ! Awake from the hyprotism of weakness. None is really weak; the soul is infinite, omnipotent and omniscient. Stand up, assert yourself, proclaim the God within you, do not deny Him ! Too much of inactivity, too much of weakness, too much of hypnotism has been and is upon our race........ Power will come, glory will come, goodness will come, purity will come, and everything that is excellent will come, when this sleeping soul is roused to self-conscious activity..........


Our proletariat are doing their duty........ is there no heroism in it ? Many turn out to be heroes, when they have some great task to perform. Even a coward easily gives up his life, and the most selfish man behaves disinterestedly when there is a multitude, to cheer them on but blessed indeed is he who manifests the same unselfishness and devotion to duty in the smallest of acts. unnoticed by all-and it is you who are actually doing this, ye ever-trampled labouring classes of India ! I bow to you.There was the Everest presence of Mahatma Gandhi, the Fatherof the Nation, who staked his life for the harijan cause.There was Baba199Saheb Ambedkar-a mahar by birth and fighter to his lastbreath against the himalayan injustice to the harijan fellowmillions stigmatised by their genetic handicap-who was theChairman of the drafting committee of the ConstituentAssembly. There was Nehru, one of the foremost architects ofFree India, who stood four square between caste suppressionby the upper castes and the socialist egalitarianismimplicit in secular democracy. These forces nurtured the roots of our constitutionalvalues among which must be found the fighting faith in acasteless society, not by obliterating the label but byadvancement of the backward, particularly that patheticsegment described colourlessly as Scheduled Castes andScheduled Tribes. To recognise these poignant realities ofsocial history and so to interpret the Constitution as tofulfil itself, not eruditely to undermine its substancethrough the tyranny of literality, is the task of judicialpatriotism so relevant in Third World conditions to makeliberation a living fact. The learned Attorney General drew our attention to theyawning gap between the legitimate expectations of thesocially depressed SC & ST and their utter underrepresentation in the Public Services except in such meanjobs as of scavengers and sweepers where no other caste wasforthcoming. Equality of opportunity would be absent so longas equalisation strategy was not put into action, and theState, stage by stage and with great care and experimentaleye, took steps to secure the ends of Arts. 16(1) and 16(4),read in the light of the Preambular promise of equality,fraternity and dignity, the Part IV directive of promotionof educational and economic interests of the SC & ST and theSpecial Chapter, especially Art. 336, devoted to betterrepresentation of the SC & ST in the services and posts inconnection with the affairs of the Union and States. Wecould not apprehend the social dimension of the starksqualour of SC&ST by viewing Art. 16 (4) through a narrowlegal aperture but only by an apercu of the broader demandsof social democracy, without which the Republic would ceaseto be a reality to one-fifth of Indian humanity. The final address to the Constituent Assembly by Dr.Ambedkar drives home this point, not to interpret but toillumine the scheme of the equality code and the castelesssociety plea : The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy can-200 not last unless there lies at the base of it social democracy. What does social democracy mean ? It means a way of life which recognises liberty, equality and


fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. We must begin by acknowledging the fact that there is complete absence of two things in Indian society. One of these is equality. On the social plane, we have in India a society based on the principles of graded inequality which means elevation of some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty. On the 26th January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions ? How long shall be continue to deny equality in our social and economic life ? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure or political democracy which this Assembly has so laboriously built up (emphasis added). Indeed from another angle of vision, Art. 16(4) serves to correct a gross social distortion and denial of human rights to whole groups ostracised by feudal history. A holistic concept of human rights includes among its components socioeconomic rights for, without basic conditions of social justice, survival with human dignity is an impossibility. Thus, a great socioeconomic plan to uplift the harijan-girijan groups is a must for living equality, proclaimed by Arts. 14 to 16, to become an active reality. It must be stated that the petitioners did not contest the need for State action to raise the lot of these backward most social sectors but objected, its widespread201 erosion of the right to basic equality which belongs to the have-nots in the country. Where do we draw the line ? These are the disturbing issues going to the root ofprogressive nationalism raised by the writ petitioners andturned against them by the State, but we are not inclined orentitled to venture into the political wisdom ofgovernmental policies vis a vis ’backward’ community,calculus save where constitutionality, falling within thejudicial jurisdiction, confronts us. We must thereforeconfine the forensic focus to the specific issue of profoundimport projected by the aggrieved petitioners whose chiefattack is against being passed over, seniority and superiormerit notwithstanding, in favour of alleged neophytes ornitwits merely because, by birth, the latter belong to theSC&ST species, trampling underfoot, in the process, thefundamental rights of equal opportunity entrenched in Arts.


14 and 16(1) of the Constitution. The dimensions of the problem, the human numbersinvolved and the agitational potential said to be simmeringin the civil services were vividly drawn at the bar by oneside. The tragic tale of die-hard decades of inequality evenafter Freedom, the socioeconomic miles to go’ and theconstitutional ’promises to keep’ (over which judges willnot legally sleep) before the dalit brethren may break theirchains and become at least distant neighbours to the lesssocially handicapped sector, were highlighted pragmatically,statistically, hierarchically, even desperately, by theproponents of the impugned circulars (Annexures F to Ocovered by Prayers I to X). These submissions serve aspoignant background but the decision on the vires of theRailway Board’s directives will depend on constitutionalinterpretation applied to Indian actualities, not toidealised abstractions or theoretical possibilities. True,the politicisation of casteism its infiltration intounsuspected human territories and the injection of caste-consciousness in schools and colleges via backward classreservation are a canker in the rose of secularism. Morepositive measures of levelling up by constructive strategiesmay be the developmental needs. But the judicial processwhile considering constitutional questions, must keeppolitics and administrative alternatives as out of boundsexcept to the extent economics, sociology and otherdisciplines bear scientifically upon the propositiondemanding court pronouncement. Here the sole issue, spreadout into the validity of the supposed sinful circulars(Annexures F to O covered by Prayers I to X) is whether Art.16, in its sweep and savings, does permit State action infavour of socially and economically backward classes,especially the constitutionally favoured category called theSC & ST, to the point of liberal concessions slurring over202’age’, ’merit’ and the like, not merely at the initialentrance gate but even at the higher promotional docks. Whether alternative policies should have been chosen byGovernment or would have served better to remove thehandicaps of the SC & STs, whether the advantages conferredon these classes are too generous and overly compassionateand whether the considerable numbers of the economicallydestitute receive the same sympathy as social have-notscategorised as SC & ST these and other speculative maybes,are beyond the courts orbit save where Art. 16 is hit bythese omissions and commissions. Nor is it the court’sprovince to question the conscionableness or propriety ofconstitutional provisions which display ultra concern formembers of the SC & ST. The court functions under theConstitution, not over it, interprets the Constitution, notamends it, implements its provisions, not dilutes it throughpersonal philosophy projected as constitutionalconstruction. Objective tuned to constitutional wavelengthsis our function and if-only if-constitutional guaranteeshave clearly been violated will the court declare as non estsuch governmental projects as go beyond the mandates of PartIII read in harmony with Part IV. If, on a reasonableconstruction, the Administration’s special provisions underArt. 16(4) exceed constitutional limits, it is the duty ofthe court to strike dead such project. Even so, whileviewing the legal issues we must not forget what iselementary that law cannot go it alone but must function asa member of the sociological ensemble of disciplines. If one out of a few reasonably tenable constructions ofthe constitutional provisions vis a vis the impugned


executive directives may sustain the latter, the courtshould and would refrain from using the judicial guillotine.There is a comity of coordinate constitutionalinstrumentalities geared to shared constitutional goalswhich persuades the judicature to sustain rather than slay,save where the breach is brazen, the transgression is plainor the effective co-existence of the fundamental right andthe administrative scheme is illusory. This Court has, onformer occasions, upheld executive and legislative actionhovering "perilously near" but not plunging intounconstitutionality (see In re: Kerala Education Bill (1959SCR 995 at 1064). It is a constant guideline which we mustvigilantly remember, as we have stated earlier, that ourConstitution is a dynamic document with destination socialrevolution. It is not anaemic nor neutral but vigorouslypurposeful and value-laden as they very descriptiveadjectives of our Republic proclaim. Where ancient socialinjustice freezes the ’genial current of the soul’ for wholehuman segments our Constitution is not non-aligned. Activistequalisation, as a realistic strategy of203producing human equality, is not legal anathema for Arts. 14and 16. To hold otherwise is constitutional obscurantism andlegal literalism, allergic to sociologically intelligentinterpretation. The Preamble which promises justice, liberty andequality of status and opportunity within the framework ofSecular, Socialist Republic projects a holistic perspective.Art. 16 which guarantees equal opportunity for all citizensin matters of State Service inherently implies equalisationas a process towards equality but also hastens to harmonizethe realistic need to jack up ’depressed’ classes toovercome initial handicaps and join the national racetowards progress on an equal footing and devotes Art. 16(4)for this specific purpose. In a given situation of largesocial categories being submerged for long, the guarantee ofequality with the rest is myth, not reality, unless it iscombined with affirmative State action for equalisationgeared to promotion of eventual equality. Article 16(4) isnot a jarring note but auxiliary to fair fulfillment of Art.16(1). The prescription of Art. 16(1) needs, in the livingconditions of India, the concrete sanction of Art. 16(4) sothat those wallowing in the social quagmire are enabled torise to levels of equality with the rest and march togetherwith their brethren whom history had not so harshlyhamstrung. To bury this truth is to sloganise Art. 16(1) andsacrifice the facts of life. This is not mere harmonious statutory construction ofArt. 16(1) and (4) but insightful perception of ourconstitutional culture, reflecting the current of resurgentIndia bent on making, out of a sick and stratified societyof inequality and poverty, a brave new Bharat. If freedom,justice and equal opportunity to unfold one’s ownpersonality, belong alike to bhangi and brahmin, prince andpauper, if the panchama proletariat is to feel the socialtransformation Art. 16(4) promises, the State must applyequalising techniques which will enlarge their opportunitiesand thereby progressively diminish the need for props. Thesuccess of State action under Art. 16(4) consists in thespeed with which result-oriented reservation withers awayas, no longer a need, not in the everwidening andeverlasting operation of an exception [Art. 16(4)] as if itwere a super-fundamental right to continue backward all thetime. To lend immortality to the reservation policy is todefeat its raison de’etre; to politicise this provision for


communal support and Party ends is to subvert the solemnundertaking of Art. 16(1), to costeify ’reservation’ evenbeyond the dismal groups of backward-most people,euphemistically described as SC & ST, is to run a graveconstitutional risk. Caste, ipso facto, is not class in asecular State.204 The authentic voice of our culture, voiced by all thegreat builders of modern India, stood for abolition of thehardships of the pariah, the mlecha, the bonded labour, thehungry, hard-working half-slave, whose liberation wasintegral to our Independence. To interpret the Constitutionrightly we must understand the people for whom it is made-the finer ethos, the frustrations, the aspirations, theparameters set by the Constitution for the principledsolution of social disabilities. This synthesis of ends andmeans, of life’s maladies and law’s remedies is a part ofthe know-how of constitutional interpretation if alienationfrom the people were not to afflict the justicing process. A statute rarely stands alone. Back of Minerva was the brain of Jove, and behind Venus was the spume of the ocean. These broader observations are necessary to set oursights right, to appreciate that our Constitution lays thegravestone on the old unjust order and the cornerstone ofthe new humane order. This constitutional consciousness isbasic to interpretative wisdom. We may now start with thefacts of the case and spell out the particular problemsdemanding our consideration. Constitutional questions cannotbe viewed in vacuo but must be answered in the social milieuwhich gives it living meaning. After all, the world of factsenlivens the world of words. And logomachy is not law but afatal, though fascinating, futility if alienated from thefacts of life. So, before pronouncing on the legality of theimpugned ten orders we must sketch the social setting inwhich they were issued and the socioeconomic facts whichclothe Art. 16(4) with flesh and blood. ’The wisest in council, the ablest in debate and the most agreeable companion in the commerce of human life, is that man who has assimilated to his understanding the greatest number of facts.’The facts The Indian Railways, with an impressive record ofexpansion, employs colossal numbers of servants in varioustypically hierarchical classes and grades. While the IndianRailways Act, 1890, substantially regulates many of thefunctions of the railway administration in India, theRailway Board is constituted under the Indian Railway BoardAct, 1905, with a view more effectively to control theadministration of railways. The Central Government isstatutorily empowered205to invest the Railway Board with all or any of the powersand functions of the Central Government under the IndianRailways Act, 1890. Power is also given by s. 2 to vest inthe Railway Board the capacity to make general rules forrailways administered by the Government. Of course, theinvestment of powers upon the Railway Board is, broadlyspeaking, subject to the condition that the CentralGovernment retains the ultimate authority in all mattersconnected with the Railway Administration. The Ministry ofHome Affairs, in the Government of India, deals usually withall matters of personnel, conditions of service of theCentral Government staff and the like. Policy decisionsregarding matters covered by Art. 16(4) apparently originate


from the Ministry of Home Affairs and emanate to the variousinstitutions like the Railway Board which responsivelyimplement them. In the present case, ten directives wereissued by the Railway Board on different occasions, whichdisclosed ’benign discrimination’ in favour of ScheduledCastes and Scheduled Tribes and are challenged by thepetitioners as ’reverse discrimination’, if we may use thatexpression popularised in American legalese. Thesedirectives were designed to protect and promote theinterests of members of the SC & ST in the matter of theiremployment under the Indian Railway Administration and theyspecially related to the softer criteria for promotion. TheRailway Board acted, as is discernible from the relevantorders, in obedience to the policy decisions of the Ministryof Home Affairs. Some argument was addressed on the validityof the Railway Board’s orders on procedural and othertechnical grounds. We see no substance in them. The Boardwas bound to carry out the Central Government’s directivesunder Art. 16(4) and did it. The broader issue of ’benigndiscrimination’ deserves close study. The meat of the matter, to put it that way, is thegross discrimination alleged to be implicit in the severalCirculars of the Railway Board and the non-applicability ofArt. 16(4) to save these circulars. The focus of thislitigation must primarily turn on that issue and the courtmust navigate towards egalitarian justice at the level ofpromotion posts in the public services, keeping the land-mark rulings of this Court as mariner’s compass. Thedisturbing perpetuation of socioeconomic suppression of awhole fifth of Indian manhood-the dalits-and the righteousresistance to prolonged ’reverse casteism’ resulting indeepening demoralization of the economically oppressed-thesoshits-have been projected by counsel on the forensicscreen as a conflict between equalisation and equality. Ourfounding fathers, familiar with social dialectics andsocialist enlightenment, surely would have intended to bringboth these have-not categories together as a206broad brotherhood against the die-hard Establishment andwould never have contemplated a fratricidal strategy whichwould blind and divide brothers in distress-the dalits andthe soshits-and harm the integration of the nation and itsdevelopmental march. Unless by dialectical approachsociologists lay bare this false dilema of dalits versussoshits, the growing distrust in democracy will deepen, thejurisprudence of constitutional revolution and egalitarianjustice will fade in the books and the founding hopes ofJanuary 26, 1950, will sour into cynical dupes of themasses, decades after! Wider perspectives must, therefore,inform our study of the equality code (Arts. 14 to 16) torid it of social contradictions and read into it the needfor a dalit soshit partnership in demanding social justice.Felix Frankfurter set the judicial function when he said:(1) A Judge should be compounded of the faculties that are demanded of the historian and the philosopher and the prophet. The last demand upon him-to make some forecast of the consequences of his action-is perhaps the heaviest. To pierce the curtain of the future, to give shape and visage to mysteries still in the womb of time, is the gift of the imagination. It requires poetic sensibilities with which judges are rarely endowed and which their education does not normally develop. These judges must have something of the creative artist in them; they must have antennae


registering feeling and judgment beyond logical, let alone quantitative, proof. Be that as it may, the court must go to theconstitutional basics for guidance, decode the articlesindifferent to agitational portents and ideologicalspeculations, but responsive to the urgent implementation ofArt. 38 into the reality of Indian life. Article 38 reads: 38(1). The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institutions of the national life. (2) The State shall in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. (emphasis added)207 The learned Attorney General, while emphasising theegalitarian commitment of the Constitution over the wholerange of public services throughout their career, defendedthe impugned orders by law and logic, pragmatics andstatistics, and countered the hypotheticals of thepetitioners by the actual furnished by official facts andfigures. He also relied on a few precedents, in particular,Rangachari’s case(1) and Thomas’s case(2) both of which bindthis Bench. He also sought to explain away the effect ofBalaji’s case(3) and Devadason’s case(4) on which the otherside had heavily relied to nullify some of the circulars. The Union of India placed before us its case thatnotwithstanding measures for bringing the gap in the matterof gross under-representation in the Administration, noadequate improvement had been registered and, and so, moredynamic State action, to fulfil its constitutional trystwith the frustrated fifth of the people described as SC &ST, became necessitous. The raw reality of meagre harijanand girijan presence in the public services conscientisedthe Administration into taking a series of cautions steps tocatalyse the prospects of these categories entering the manyDepartments of Government not merely at the initial stagebut also at promotional points and in appointments tosupervisory posts so as to become members of the higherechelons. The learned Attorney General contended that suchaffirmative actions, slurring over fanatical and financialinsistence on so-called merit and seniority, was inconformity with Art. 16(1) itself and, in any case, wasprotected by Art.16(4). Maybe, the human numbers outside theSC & ST honestly suffer some meyhem in their careerespecially at the higher notches of promotion after longstagnation and are bitter that the shudra or panchama stealsa march over him now, although the poignant pages of earlierhistory have been a negation of personhood then for millionsof the dregs of society, desperately driving Dr. Ambedkar tovow "I shall not die a Hindu". But the synthesis of Art. 16,not the antithesis between Art. 16(1) and Art. 16(4), givesthe clue to creative constitutional construction. The learned Attorney General’s plea was that in asociety of chronic inequality and scarcity of employment,actual equality could never be midwifed without birth pangs,and discriminatory unconstitutionality could not vitiateprogrammes meant to achieve real-life208equality, unless we took a pragmatic view. This approach is


permissible if we follow Chief Justice Warren: Our judges are not monks or scientists, but participants in the living stream of our national life, steering the law between the dangers of rigidity on the one hand and of formlessness on the other. Our system faces no theoretical dilemma but a single continuous problem: how to apply to ever-changing conditions the never-changing principles of freedom. Let us draw the precise battle lines to contain theconstitutional conflict within the actual limits. Equalityof opportunity in matters of State employment is aconstitutional guarantee and no citizen can be discriminatedagainst on the score only of sex, caste, descent, place ofbirth or residence. So, one point pressed before us is thatScheduled Castes cannot be a favoured class in the publicservices because they are ’castes’ and cannot claimpreference qua castes unless specially saved by Art. 16(4).And Art. 16(4) speaks of class, not caste and the two aredifferent, however, politically convenient the confusion maybe. Another vital contention put forward by counsel for thepetitioners was that Art. 16(4) could not apply topromotional levels. A third basic plea was that efficiencyof administration was a constitutional consideration underArt. 335 and could not be a sacrificial goat to propitiatethe backward class Kali. The impugned circulars offendedagainst efficiency, both by fomenting frustration among theCivil Services indirectly producing inefficiency and bymanning higher posts which demand higher skills with men oflower competitive calibre and less experience in servicethus posting ’efficiency risks’ in strategic positionsviolating Art. 335. The contentious issue is now clear. Are SC & ST merecastes within the sense of Art. 16(2) ? If so, can Art.16(4) help these castes through rule of promotionalpartiality ? And, in any case, can Art. 16(4) rescue rulesof benign discrimination if the impact thereof is generationof gross inefficiency in administration ? Is not economic’have notism’ a better yardstick of backwardness in secularIndia? A brief resume of the structure of the Railway Servicesmay help understand the rival arguments in their precisesetting. The pyramid begins, at the base, with Class IVposts and rises to the apex, by stages, through Class III,Class II and Class I. True to our hierarchical culture,pervasive in Indian Services, there are further sub-divisions, consisting of many categories in each class andmany grades in each category. The agencies for recruitmentare the Union Public Service209Commission, the Railway Service Commission and the topofficers authorised by the Railway Board in this behalf.Ordinarily the first entry into each category is filled bydirect recruitment, if we may use language loosely.Thereafter, appointments to higher grades/categories areusually by promotion. The promotional processes aretraditionally two-fold, viz., (a) by departmental selectionbased on merit-cum-seniority, and (b) by escalation, in theorder of seniority, from the lower to the highergrade/category, subject, of course to being weeded out iffound unfit. Candidates belonging to SC&ST receive certainpronounced advantages both at the stage of initialrecruitment and later at the promotion stage. The IndianRailway Establishment Manual a compendious collection ofrules and directions bearing on the conditions of employmentof railway personnel, sets out all the information. Speaking


population-wise and in approximate terms, the ScheduledCastes constitute about 15% and the Scheduled Tribes 7 1/2%.Broadly based on the ratio of the strength of SC&ST to thewhole population, the Railway Administration provided forreservation for candidates belonging to the SC&ST. Thispercentage of reservation applied to Class IV, Class III,Class II and, in a limited way, to Class I posts. Thereservation is worked out by the method known as 40-pointroster. These special provisions notwithstanding the intakeof these communities, stagnating at the bottom of the Indianpolicy, continued to be chronically niggardly. To increasethe rate of absorption of SC&ST into the services, furtherfacilities, concessions and relaxations were offered fromtime to time. Despite these seemingly attractive employmentopportunities the dismal backwardness in the matter ofrepresentation in administration from among the SC&ST wassuch that the vacancies reserved for them remained, in manycases, unfilled by SC & ST candidates. Lest the overallrepresentation of the members of the SC&ST should continuedeplorably negligible Government adopted a policy of "carryforward", for upto three recruitment years, of reservedvacancies if enough number of candidates from the saidgroups did not get selected. The "carry forward" rule wascalculated to keep open reserved vacancies for at leastthree years so that the under representation could be madeup at least in part. Homogenisation of the dalits into thenational mainstream was regarded as vital to our democracyby the State and these positive strategies of specialopportunities vis a vis SC&ST had, as its raison d’etre,only the imperative need to exercise the haunting spectre ofthe socially and economically suppressed species and toabolish the utter squalour of SC&ST so that the community atlarge could march ahead without haggard groups draggingtheir feet. Social conscience considers balanced democraticdevelopment as the humane justification for selectivediscrimination.210 With this backdrop, we may epitomise the ten ’tainted’directives and scan them for their unconstitutionality. Special provisions for depressed classes and even othercastes have a pre-constitution history. After theConstitution was enacted the legality of old rules based oncaste became moot and the Central Government revised itspolicy. The post-Constitution re-incarnation of the communalG.O. concentrated not on caste orientation but onelimination of socioeconomic suppression and the diverseways to achieve this objective. We must remember, in this context, not merely the fourclasses of Service but also the broad division of the staffinto selection and non-selection posts. The first policystatement of the Union of India on the issue of betterrepresentation of SC&ST in Government Service begins withResolution No. 42/21/49-NG 8 of September 13, 1950. Tounderstand the functional compulsions, purpose, orientationand constitutional parameters relevant to such a policyformulation we have to refer to a few articles of theConstitution. Articles 14 to 16 form a code by themselves and embodythe distilled essence of the Constitution’s casteless andclassless egalitarianism. Nevertheless, our founding fatherswere realists, and so did not declare the proposition ofequality in its bald universality but subjected it tocertain special provisions, not contradicting the soul ofequality, but adapting that never changing principle to theever-changing social milieu. That is how Arts. 15(4) and


16(4) have to be read together with Arts. 15(1) and 16(1).The first sub-article speaks of equality and the second sub-article amplifies its content by expressly interdictingcaste as a ground of discrimination. Article 16(4) impartsto the seemingly static equality embedded in Art. 16(1) adynamic quality by importing equalisation strategies gearedto the eventual achievement of equality as permissible Stateaction, viewed as an amplification of Art. 16(1) or as anexception to it. The same observation will hold good for thesub-articles of Art. 15. Thus we have a constitutionalfundamental guarantee in Arts. 14 to 16; but it is anotorious fact of our cultural heritage that the ScheduledCastes and the Scheduled Tribes have been in unfree Indiannearly dehumanised, and a facet of the struggle for Freedomhas been the restoration of full personhood to them togetherwith the right to share in the social and economicdevelopment of the country. Article 46 is a DirectivePrinciple contained in Part IV. Every Directive Principle isfundamental in the governance of the country and it shall bethe duty of211the State to apply that principle in making law. Article 46,in emphatic terms, obligates the State. "to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.Reading Art. 46 together with Art. 16(4) the luscent intentof the Constitution-framers emerges that the exploited lotof the harijan girijan groups in the past shall beextirpated with special care by the State. The inference isobvious that administrative participation by SC&ST shall bepromoted with special care by the State. Of coursereservations under Art. 16(4) and promotional strategiesenvisaged by Art. 46 may be important but shall not runberserk and imperil administrative efficiency in the name ofconcessions to backward classes. Article 335 enters a caveatin this behalf: 335. The claims of the members of the scheduled Castes and the Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.The positive accent of this Article is that the claims ofSC&ST to equalisation of representation in services underthe State, having regard to their sunken social status andimpotence in the power system, shall be taken intoconsideration. The negative element, which is part of theArticle, is that measures taken by the State, pursuant tothe mandate of Arts. 16(4), 46 and 335, shall be consistentwith and not subversive of "the maintenance of efficiency ofadministration". Within this broad constitutional framework the CentralGovernment worked out its policy, way back in 1950, and madesubsequent alterations in keeping with the needs of thesituation, the poor progress registered, the militantimpatience of the affected SC&ST and the improved tactics tohasten abolition of the depressed status of these groups byeffective equalisation with the rest. Even here, it may be noticed that the Constitution hasgiven a special position for the Scheduled Castes and theScheduled Tribes. Article 341 makes it clear that a ’Scheduled Caste’

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need not be a ’caste’ in the conventional sense and,therefore, may not be a caste within the meaning of Arts.15(2) or 16(2). Scheduled Castes become such only if thePresident specifies any castes, races or tribes or212parts or groups within castes, races or tribes for thepurpose of the Constitution. So, a group or a section of agroup, which need not be a caste and may even be ahotchpotch of many castes or tribes or even races, may stillbe a Scheduled Caste under Art. 341. Likewise, races ortribal communities or parts thereof or part or parts ofgroups within them may still be Scheduled Tribes (Art. 342)for the purpose of the Constitution. Under this definition,one group in a caste may be a Scheduled Caste and anotherfrom the same caste may not be. It is the socioeconomicbackwardness of a social bracket, not mere birth in a caste,that is decisive. Conceptual errors creep in whentraditional obsessions obfuscate the vision. This aspect has been referred to in the State of Keralav. N. M. Thomas by me, and dealt with at more length by Ray,C.J.: Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste. In Bhaiyalal v. Hari kishan Singh and Ors.(2) this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a Scheduled Caste and his declaration that he belonged to the Chamar caste which was a Scheduled Caste could not be permitted because of the provisions contained in Article 341. No Court can come to a finding that any Caste or any tribe is a Scheduled Caste or Scheduled Tribe. Scheduled Caste is a caste as notified under Article 366(25). A notification is issued by the President under Article 361 as a result of an elaborate enquiry. The object of Article 341 is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer. The President notifies Scheduled Castes not withreference to any caste characteristics but their abysmalbackwardness, as is evident from the scheme of Part XVI. Heappoints, under Art. 338, a Special Officer whose duty is toinvestigate into all matters relating to safeguards for theSC&ST. The Constitution provides not merely for adequaterepresentation of SC&ST to services and posts under theUnion and States, but also provides for reservation of seatsfor SC&ST in the Legislatures. The cursory study of theArticles relating to the status and safeguards of SC&ST putsit beyond doubt that the founding fathers have assigned tothem a special place and shown towards them special concernand charged the State with special mandates to redeem213these handicapped human sectors from their grossly retardedsituation. Indeed, they are not merely backward, but are thebackwardmost and cannot be equated with just any other castein the Hindu fold. It is, therefore, problematic whetherArt. 16(2) when it refers to equality among castes dealswith the Scheduled Castes which, as shown above, may even bemade of a plurality of castes or groups or races and mayvary from State to State. Also, a caste, subjected quacaste, to the most humiliating handicaps may be a backwardclass although the Court will hesitate to equate caste withclass except where the degree of dismalness is dreadful. Therelevance of this point will be clear when we deal with thelegal submissions of counsel.


We will now state, in an abbreviated form, the variousmeasures of the Railway Board (in response to decisions ofthe Ministry of Home Affairs) for reservation in services ofSC&ST. After noting the policy of communal representation inthe Services before the Constitution and the constitutionalban on discrimination by way of reservation on the ground ofcaste save in the case of SC&ST (and in some cases Anglo-Indians with whom we are unconcerned here) the Home Ministryproceeded to spell out the new stance: Pending the determination of the figures of population at the Census of 1951 the Government of India have decided to make the following reservations in recruitment to posts and services under them: (a) Scheduled Castes:-The existing reservation of 12 1/2 % of vacancies filled by direct recruitment in favour of the Scheduled Castes will continue in the case of recruitment of posts and services made, on an all-India basis by open competition, i.e. through the Union Public Service Commission or by means of open competitive test held by any other authority. Where recruitment is made otherwise than by open competition the reservation for Scheduled Castes will be 16-2/3 as at present. (b) Scheduled Tribes:-Both in recruitment by open competition and in recruitment made otherwise than by open competition there will be a reservation in favour of members of Scheduled Tribes of 5% of the vacancies filled by direct recruitment. ......Under the Constitution all citizens of India are eligible for consideration for appointment to posts and services under the Central Government irrespective of their214 domicile or place of birth and there can be no recruitment to any Central Service which is confined by rule to the inhabitants of any specified area. In practice however recruitment to class I and II services and posts is likely to attract candidates from all over India and will be on a truly all-India basis, while for the majority of Class III services & posts which are filled otherwise than through the Union Public Service Commission only those residing in the area or locality in which the Office is located are likely to apply. In the latter class of cases the percentages of reservations for Scheduled Castes and Scheduled Tribes will be fixed by Government taking into account the population of the Scheduled Castes and Scheduled Tribes in that area.Reservations were excluded for promotions and minimumqualifications were a ’must’. But age relaxation by 3 years(from the maximum fixed for others) was allowed. This policyis not challenged as unconstitutional and rightly so. However, this special provision showed only minimalconcessions to SC&ST, being the first cautious,conservative, post-constitutional measure under Art. 16(4).But law is what law does. Did this reluctant relaxation onlyon a few grounds work? Constant monitoring of law-in-action,with an eye on the end result, is social engineering. Thegoal here was to awaken the sleeping soul and harness theharijan resource by mainstreaming techniquesconstitutionally sanctioned. The policy proved non-viableand a change of strategy was called for and by Annexure Dthe Railway Board altered the rules "with a view to securingincreased representation of Scheduled Castes and Scheduled


Tribes in the Railway Services". At the instance of the HomeMinistry the Railway Board decided on 5-10-1955 that morerealistic relaxations were needed and authorised recruitingbodies to slur over low places obtained by the SC&STcandidates: .....except where such authority considers that the minimum standard necessary for the maintenance of efficiency of the administration has not been reached. Whenever candidates are selected in this manner, the appointing authorities will make necessary arrangements to give additional training and coaching to the recruits so that they might come up to the standard of other recruits appointed along with them.The anxiety to level up the lowly human layers by specialtraining so as to maintain administrative efficiency isevident in this directive.215Likewise, where direct recruitment, otherwise than byexamination was provided for, taking of SC&ST candidates ’..... fulfilling a lower standard of suitability than from other communities, was permitted so long as the candidates have the prescribed minimum education and technical qualifications and the appointing authorities are satisfied that the lowering of standards will not unduly affect the maintenance of the efficiency of administration.’Here again, obsession with ’efficiency’ is manifest. Thencomes what is called the ’carry forward’ rule: (3)(a) if a sufficient number of candidates considered suitable by the recruiting authorities, are not available for the communities for whom reservations are made in a particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be reserved in the following year in the normal course, and to the extent to which approved candidates are not available in that year against this additional quota, a corresponding addition should be made to the number of reserved vacancies in the second following year. * * * * (b) In the event of suitable Scheduled Caste candidate not being available, a Scheduled Tribe candidate can be appointed in the subsequent reserved vacancy and vice versa subject to adjustment in the subsequent points of the roster. The quota for two years, if carried forward, would notmaterially affect the stream of ’merit-worthy’ candidates,nor substantially diminish the prospects of non-SC&STcandidates in a given year. So the Railway Board introducedthe principle consistently with Art. 335. Government moved further because real power could beshared by the weakest sections only if the doors of thehigher decks were pened to them. The higher echelons are thereal controllerates, not the menial levels, hierarchicallystructured as our society is. Obviously, Art. 16(4) was notdesigned to get more harijans into Government as scavengersand sweepers but as ’officers’ and ’bosses’, so thatadministrative power may become the common property of thehigh and low, homogenised and integrated into one community.Social stratification,216the bane of the caste system, could be undone and verticalmobility won not by hortative exercises but by experience of


shared power. Viewed thus, the ’open sesame’ strategy for entry intosuperior cadres could only be by extending concessions athigher levels of ’promotions’. Annexure D did not makereservations for SC&ST for promotion posts, but merely askedfor sympathy on the part of promoting authorities. Lachrymalexercises, even in government directives, are in practice,little more than skin-deep; and elitist alibis, when theancient anguish of the lowliest & the lost besieges thecitadels of the status quo, readily checkmate ameliorativemoves. The harijan lot, in administrative services at thepromotional levels, remained a paper hope, a teasingillusion and a promise of unreality. Article 46, whether welike it or not, ordains that the State shall ’with specialcare’ promote the interests of the SC&ST. And so long as theharijan-girijan remained an alien to the Civil Service andthe janitors for the higher chambers of Administration werethemselves non-harijan-girijan gentlemen, he would be anaive sociologist who thought that mere plea for moresympathy made in official orders would work magic.Government, on a performance audit of its policy of ’noreservation’ for promotion posts, discovered that theharijan could hardly reach higher positions. More effectivemethods were needed. A radical change in policy was effected by the RailwayBoard through Annexure F of April 27, 1959. ’Merit’,sanctified by tradition, lost the battle. ’Tradition is agreat retarding force, the vis inertiae of history;’ and so,heroic measures of progressive thrust, the Railway Boardrealised, alone could effect the break-through and bring theharijan-girijan groups into the higher brackets ofAdministration Annexure was promulgated providing forreservation in promotions. This has been challenged beforeus. The tepid provision opening up promotion posts for’reserved’ categories was first confined to Class III andClass II, Class I being too sacrosanct to be soiled bymeritless members. Annexure F reads: Sub: Reservation for members of Scheduled Castes and Scheduled Tribes in posts filled by promotion in Railways. Reference is invited to Board’s letter No. E55CMI/3 dated 5-10-55. The Railway Board have, in partial modification of para IV of the above letter, decided as follows:- (a) Promotion from Class IV to Class III and from Class III to Class II.217 The Railway Board have decided that promotions from Class IV to Class III and from Class III to Class II service are of the nature of direct recruitment and the prescribed quota of reservation for Scheduled Castes and Scheduled Tribes should be provided as in direct recruitment. The field of eligibility in the case of Scheduled Castes and Scheduled Tribes candidates should be four times the number of posts reserved without any condition of qualifying period of service in their case, subject to the condition that such consideration should not normally extend to staff beyond two grades immediately below the grade for which the selection is held.This reservation was confined to ’selection posts’ and thecircular was explicit that "there will be no quota forScheduled Castes and Scheduled Tribes candidates in respectof promotion to "non-selection" posts. For "general posts"


of certain types in Class III, it was laid down: (c) "General Posts" in Class III. There are certain other types of posts on Railways such as Passenger Guides, Welfare Inspectors, Safety Inspectors Platform Inspectors, Publicity Inspectors, Vigilance Inspectors, etc., which are ex-cadre posts filled by drawing staff from more than one branch. Filling of these posts is in the nature of direct recruitment and the reservation for Scheduled Castes and Scheduled Tribes as applicable to direct recruitment should be applied." More chances to pass tests, additional training andcoaching to raise the standard of the sub-standard were alsoprovided for in the Board’s order. Homage was thus paid tothe ’administrative efficiency’ component of Art. 335. This departure regarding reservation at the promotiontier for selection posts was challenged before this Courtbut upheld in Rangachari’s case. We will dwell at somelength on that ruling later but we may merely mention thanan appeal was made to us by counsel for the petitioners thatwe should reconsider, by reference to a larger bench, theratio of Rangachari which has been approvingly referred tofor nearly two decades by this Court, acted upon byGovernment throughout and enjoys, if we may say so withgreat respect, our full concurrence. Constitutionalpropositions on which a whole nation directs its destiny arenot like Olympic records to be218periodically challenge and broken by fresh exercises inexcellence but solemn sanctions, with judicial seal setthereon, for the country to navigate towards the haven ofhuman development for everyone. To play cross-word puzzlewith constitutional construction is to profane it, unless,of course, a serious set-back to the progress of humanrights or surprise reversal of constitutional fundamentalshas happened. We find the question discussed, decided andconsistently followed since Rangachari and see no reason toopen the Pandora’s box. So it was that we rejected the pleafor reconsideration. Even so, the alternative method of containing Art,16(4) within the contours of Rangachari was open to counseland that has been done in argument as will be evident fromthe discussion on the vires of the subsequent orders of theBoard. All the fire was turned by petitioners’ counsel onpromotion ’excesses’ through Railway Board circulars.Annexure H of August 27, 1979 is one such:Annexure H The Railway Board have now revised their policy in regard to reservation and other concessions to Scheduled Castes and Scheduled Tribes in posts filled by promotion.... The particular concessions are concretised thus: (B) Promotion by selection method (i) Class II appointments: In promotion by selection from Class III to Class II, as a measure of improving representation of Scheduled Castes/ Scheduled Tribes, it has now been decided that, if they are within the zone of eligibility the Scheduled Caste and Scheduled Tribe employees will be given, by the Selection/Departmental promotion Committee, one grading higher than the grading otherwise assignable to them on the basis of their record of service i.e. if any Scheduled Caste or Scheduled Tribe employee has been categorised by the Committee, on the basis of his record of service as


"Good", he should be recategorised by the Committee as "Very Good". Likewise, if any Scheduled Caste or Scheduled Tribe employee is grades as "Very Good" on the basis of his record of service, he will be recategorised by the Committee as "Outstanding". Of course, if any Scheduled Caste or Scheduled Tribe employee has already been categorised by the Committee as "Outstanding" on the basis of his record of service, no recategorisation will be needed in his case. This recategorisation will then219 form the basis of allotment of marks in respect of ’Record of service’. The above concession would be confined to only 25 per cent of the total number of vacancies in a particular grade or post filled in a year.In the matter of selection to Class III and Class IV poststhe concession runs thus: There will be reservation of 12 per cent and 5 per cent of the vacancies for Scheduled Castes and Scheduled Tribes respectively in promotions made by selection in or to Class III and Class IV posts, in grades or services in which the element of direct recruitment, if any, does not exceed 50 per cent. Promotion against reserved vacancies will continue to be subject to the candidates satisfying the prescribed minimum qualifications and standards of fitness. II. It has also been decided that in respect of promotions to selection posts in Class III where safety aspect is not involved, the qualifying marks under "Professional ability" in respect of Scheduled Caste and Scheduled Tribe candidates should be 25 out of 50 instead of 30 out of 50 as applicable to the candidates belonging to the unreserved groups. Similarly, qualifying marks in aggregate in respect of Scheduled Castes and Scheduled Tribes should be 50 out of 100 instead of 60 out of 100 for others.It must be noticed that while grading has been modified andqualifying marks reduced as indicated above, for SC&ST, carehas also been taken to exclude from these concessions, postswhich involve "safety aspects" and not to relax prescribedminima of qualifications and standards of fitness. Article335 has been honoured, making a margin on merit inevitablewhen choosing the second best. The next Order assailed by counsel is that of 20thApril 1970 (Annexure I) and its highlights are revealed byrelevant excerpts:ANNEXURE I The policy of the Government of India in regard to reservations for Scheduled Castes and Scheduled Tribes in posts and services under the Government of India was laid down in the Ministry of Home Affairs Resolution No. 42/21/49/NGS dated 13th September, 1950 circulated with Railway Board’s letter No. E47CMI/49/3 dated 23rd December, 1950. The question of revising the percentages220 of reservation for Scheduled Castes and Scheduled Tribes in post and services under the Government of India in the light of the population of these communities as shown in the 1961 census has been under consideration of the Government for some time. It has now been decided in modification of the decisions contained in paras 2 and 4(1) of the Ministry of Home Affairs’ Resolution dated 13th September 1950, that the


following reservations will hereafter be made for the Scheduled Castes and Scheduled Tribes in posts and services which are filled by direct recruitment;What are they? 12% and 5% are raised to 15% and 7%respectively for SCs and STs, consequent on the censuspicture and population ratio. Likewise, in local or regionalrecruitments (presumably, they are inferior posts) thepopulation ratio prevalent in the concerned States was to bethe basis for reservation quota for SC&ST. By the same order, the "carry forward" rule was carrieda little further forward by increasing it, in the absence ofsuitable candidates from SC&ST, from 2 to 3 years. It wasalso provided that the reserved vacancies, if candidateswere available (and vice versa) could well be filled bythem, instead of being thrown open to the general community. The Board’s letter dated April 29, 1970 made a furtherchange by revising the roster. Positions Nos. 1, 4, 8, 14,17, 22, 28, 36 were to go to SC/ST candidates. The Notetakes care to avoid total deprivation of changes for aparticular year for general candidates when the vacanciesare few: NOTE: If there are only two vacancies to be filled in a particular year, not more than one may be treated as reserved and if there be only one vacancy, it should be treated as unreserved. If on this account, a reserved point is treated as unreserved the reservation may be carried forward to the subsequent three recruitment years.Similar provisions, though somewhat different in detail,were made for posts filled by direct recruitment otherwisethan by open competition. A big break with the past was next made by the Board’sproceedings of 11-1-1973 (Annexure K) which hurt the lowerclasses of employees whose promotion was regulated byseniority-cum-suitability (i.e., non-selection posts,according to official jargon). That directive states:221ANNEXURE K After careful consideration the Board have now decided that a quota of 15% and 7 1/2% for Scheduled Castes and Scheduled Tribes respectively may also be provided in promotion to the categories and posts in Class I, II, III and IV filled on the basis of seniority-cum-suitability provided the element of direct recruitment to those grades, if any, does not exceed 50%. The number of reserved vacancies in a recruitment year (viz., financial year on the Railways) should be determined under Board’s letter No. E(SCT) 70CM15/10 dated 20-4-70........... In the case of reserved community candidates equal to the number of reserved vacancies are not found suitable for promotion even with relaxed standard, the reserved vacancies may be dereserved after following the procedure prescribed for dereservation as in the case of selection categories. The quota so dereserved will be carried forward to three subsequent recruitment years; the year in which no panel is formed is not to be taken into account for this purpose.This order has been fiercely attached as unconstitutional.The order attached in Rangachari’s case (supra) related toselection posts at the promotion level but Annexure K (11-1-1973) covers promotion to non-selection posts. The wholegamut of promotions in Classes II, III and IV areas thuscomes under the reservation formula.


Annexure I extended the principle of reservation tolower ranks of Class I services (i.e. Junior Class I scale).The ’carry forward’ project, calculated to ensure adequaterepresentation by broadening the time zone to three years,was applicable to all cases of reservations in promotionposts. One of the major broadside attacks made on the validityof the Railway Board’s circulars was the serious peril toadministrative efficiency, a non-negotiable value under Art.335. The hazards to railway travel, it was urged, would soincrease because of the harijan component and its sub-standard performance that rail-road accidents would escalateand threaten human life! We must, by way of antidote to thiscaricature, notice, however, that provisions for specialtraining and coaching where the recruit was somewhat sub-standard, was specially insisted on and this, at leastpartially, overcame the222’awesome’ deficiency. No factual material to blame all theills of the Indian Railways on the reservation policy wasplaced before us except a hunch in a Report to be referredto later. If harijans were excluded would railway accidentshave a long holiday ? Courts are not credulity in robes ! A comprehensive programme of balancing administrativecompetency with adequacy of SC&ST representation wasattempted by the Railway Board in Annexure M which providedfor in-service training for candidates who were belowstandard. This letter of the Board dated 31st August 1974recalled the earlier letter of 27-4-1959 which provided: While filling the posts on promotion, however, candidates of three communities should be judged in a sympathetic manner and arrangements made where necessary to give to such staff additional training and coaching, to bring them upto the standard of others.In the light of actual experience and the complex ofconsiderations implied in Arts. 16(4), 46 and 335 the Boarddirected, with disturbing concern for the continuedexclusion of SC&ST candidates, as follows: The matter has been further considered by the Board and it has been decided that if, during the selection proceedings it is found, that the requisite number of Scheduled Caste and Scheduled Tribe candidates are not available for being placed on the panel in spite of the various relaxations, already granted, the best among them i.e. who secure highest marks, should be earmarked for being placed on the panel to the extent vacancies have been reserved in their favour. The panel excluding the names of such persons may also be declared provisionally. Thereafter the Scheduled Caste and Scheduled Tribe candidates who have been so earmarked may be promoted ad hoc for a period of six months against the vacancies reserved for them. During the said six months period, the Administration should give them all facilities for improving their knowledge and coming upto the requisite standard, if necessary by organising special coaching classes. At the end of the six months period, a special report should be obtained on the working of these candidates and the case put up by the Department concerned to the General Manager through SPO(RP) for a review. The continuance of the Scheduled Caste and Scheduled Tribe candidates in the223 higher grades would depend upon this review. If the candidates are found to have come upto the requisite


standard, their names would be included in the panel and the vacancies dereserved and filled in the usual manner by candidates from other communities. The procedure indicated in the preceding para would also apply to promotion to the posts filled on the basis of seniority-cum-suitability, with the only difference that the Review at the end of the six months period would be carried out by the authority competent to approve the Select List.This directive takes good care of harijan-girijanobtuseness, if any. We move on to Annexure N of February 21, 1976 whichrelates to carrying forward of reserved vacancies remainingunfilled. We need not go into its details except to statethat further facilities are offered to SC&ST promotees, onaccount of unsatisfactory intake as a fact. Although on paper what might appear to be pamperingconcessions were offered to SC&ST candidates, the painfulreality, according to the Union of India, was alarmingunder-representation and utter inadequacy of SC&ST personnelin the Railway Services. Arithmetical manipulations andnational concessions incorporated in government proceedingsdid not impact on the raw life of depressed classes unlessactivist tactics of upgrading the competence and awarenessof those human sectors were fruitfully carried out in aresult-oriented manner. The Union of India and the RailwayBoard apparently pinned their faith on increasing thepercentage hoping that thereby more harijans would beattracted. The twin reservations of 15% and 7 1/2% for theSCs and STs to be filled by promotion in Class I, II, IIIand IV services, whereby seniority-cum-suitability orselection on the strength of competitive examinations, hadall along been limited in such manner as not to exceed 50%,even on the application of the ’carry forward’ formulae.Since this did not ensure fair representation, a change wascontemplated by Annexure O: The question of enlarging the scope of the existing scheme of reservation for Scheduled Castes and Scheduled Tribes in the aforesaid cases has been under the consideration of the Government of India for some time past and in partial modification of the instructions contained in the above letters it has now been decided that henceforth the reservations in posts filled by promotion under the existing scheme as indicated above would be applicable to all grades or services where224 the element of direct recruitment, if any, does not exceed 66-2/3% as against 50 per cent as at present.What was done was to raise the maximum from 50% to 66-2/3%its vice, writ on its face-according to counsel’s argument-being promotion of inefficiency along with promotion ofSC&ST appointees. The furious charges of inefficiency inAdministration, injected by incompetence imported throughSC&ST candidates and by frustration and demoralisation ofthe non-SC&ST members who were passed over by their lesscompetent juniors, was sought to be supported by reliance onthe Report of the Railway Accidents Enquiry Committee 1968.There was reference in it to discontent among supervisorsinter alia on account of the procedure of reservation ofposts for SC&ST. It is true that the Report has a slantagainst the SC&ST promotion policy notwithstanding theassurance given by the Railway Board to the Committee thatinstructions had been issued not to relax standards infavour of SC&ST members where safety was involved. We need


hardly say that it is straining judicial gullibility tobreaking point to go that far. This is an argumentum anabsurdum though urged by petitioners with hopeful ingenuity.Nor are we concerned with certain newspaper items andrepresentations about frustration and stagnation. On theother hand, the plea, forcefully put forward that economicbackwardness should be the touchstone of any reservationpolicy in a secular, socialist republic may merit betterexamination. Surely, extraneous factors, howeverpassionately projected, cannot shake or shape judicialconclusions which must be founded on constitutional criteriaand relevant facts only. What then is the defence of theUnion to the charge of departure from equal treatment forall citizens alike ? What is the principle derivable fromthe precedents on the points raised ? A technical point is taken in the counter affidavitthat the 1st petitioner is an unrecognised association andthat, therefore, the petitioner to that extent, is notsustainable. It has to be overruled. Whether the petitionersbelong to a recognised union or not, the fact remains that alarge body of persons with a common grievance exists andthey have approached this Court under Art. 32. Our currentprocessual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, andenvisions access to justice through ’class actions’, ’publicinterest litigation’, and ’representative proceedings’.Indeed, little Indians in large numbers seeking remedies incourts through collective proceedings, instead of beingdriven to an expensive plurality of litigations, is anaffirmation of participative justice in our democracy. Wehave no hesitation in holding that the narrow concept225of ’cause of action’ and ’person aggrieved’ and individuallitigation is becoming obsolescent in some jurisdictions. Itmust fairly be stated that the learned Attorney General hastaken no objection to a non-recognised associationmaintaining the writ petitions. The case of the Union of India is that Arts. 46, 335,16(1) and 16(4) must be taken as a constitutional packageand not read in isolation. In that view, the policy ofreservation is geared to equalisation of opportunities foremployment and, therefore, a fulfillment of Art. 16(1).Reading the two sub-articles as complementary to each otherand giving a wider connotation to the expression"appointment", the learned Attorney General sought toinclude in its semantic circle appointments by way ofpromotion, deputation, transfer and on contract. On thisfooting, it was urged that Art. 16(4) completely protectedthe various directives regarding appointments by promotion.It is the case of the Government that SC&ST have all alongsuffered social and economic deprivation and utter under-representation in the Government service. Naturally,reservation to boost the chances of the SC&ST in Governmentservices had to be resorted to as a pragmatic policy oflevelling up. Having regard to administrative efficiency andother social factors, Government had been reviewing theposition from time to time and had tailored its reservationpolicy to fit the needs of a given service or state ofaffairs. The stand of the State is that- ....once the Government have decided after reviewing the overall position of representation of Scheduled Castes/Scheduled Tribes in Government Services that the reservation principles should continue in certain types of appointments, the reservation of a certain number of vacancies have to be


provided, irrespective of whether Scheduled Castes/Scheduled Tribes are already duly represented or not in specific cadres of the Services. Although Rangachari’s case covered only selectionposts, the Union of India took the view that the sameprinciple held good for nonelection posts also. In fact, ifat all the prospects of SC&STs in Government Service were tobe improved, it had to begin with non-selection posts. Theyare the lower categories where the members of the SC&ST havea chance. Provision of reservation in Class I services wouldbe theoretically attractive to SC&STs but not so much inpractice. ....reservation in promotional appointments made by means of seniority-cum-suitability is necessary because the226 Scheduled Castes/Scheduled Tribes who generally occupy the lower positions in the recruitment/promotional panels cannot get further promotion at all or as per the requisite percentage alongwith other employees because of their very low position in the seniority listThe submission of the Central Government is that not withstanding the extension of the principle of reservation, thepresence of harijans and girijans is sparse. ...In this connection, an extract from the half yearly report of the Ministry of Railways for the period ending 31-3-1978 showing the representation of the Scheduled Castes and Scheduled Tribes in the various Railway Services presented to the Parliament by the Government is reproduced below....The table furnished as in 1978 shows that Scheduled Casteshave in Class I around 7% representation, in Class II 9.5%,in Class III 11.1% and even in Class IV (excludingsafaiwalas) only 18%. Safaiwalas, who are menials likescavengers and sweepers, are mostly drawn from harijanssince other communities consider such jobs infra dig. So,there is 83% representation of SCs among safaiwalas. This isnot because of representation but because no one else isforthcoming for such ’untouchable’ jobs. The ScheduledTribes have a more pathetic tale to tell. In Class Iservices they have 1% representation, in Class II, 1.8%, inClass III, 2.2% and in Class IV (excluding safaiwalas) 5.1%and even among safaiwalas only 1.5%. On the basis of thesestatistics the Railway Board’s case is that adequacy ofrepresentation for SC&STs even according to their population(forgetting centuries of total exclusion) is a long way off. These official figures culled from the Reports of theCommissioner for Scheduled Castes and Scheduled Tribes arefor employment in Central Govt. not confirmed to theRailways, and reveal how a square deal to SCs and STs maytake centuries, observing the current snail’s pace in theintake. Social realists will read these pessimistic figure ofthe last ten years which prove the myth and negate theneurotic rhetoric about the SC&ST communities havingcornered all the posts in the Central Government fromChaprasi to Secretary, accelerating there by the impendingcalamity of administrative collapse due to thedisproportionate presence of the ’inefficient’ socialcomponents! A mere formula of reservation is not the factumof recruitment. That is227morbid fancy. The truth is that more aggressive policiesthan paper reservations are the need if equality and


excellence are the creed. Reservation is but one strategyand historically has established itself. More must be doneby a complex of processes by which harijans/girijans willget boosted in ’capabilities’, and mainstreamed to share inthe Civil Service cake. The poor annual assimilation intothe public employment sector of the weakest social segmentsmakes a tragic mockery of the statistical jugglery ofharijan monopoly. Any theory or formula is best tested byhow it works, not by how it is worded. Nikita Kruschev onceremarked: "...a theory isolated from practice, is dead, andpractice which is not illumined by ....theory is blind". Thetheoretical attack on over representation flowing from thereservation rule must be tried out in practice, as thefigures for the last 10 years show; and the justificationfor more facilities and higher percentage in publicemployment must be validated by the thesis of socialjustice. Assertions either way end in a blind alley. That iswhy we have been at pains to project the constitutionaltheory and resultant representation of SC and STreservations under Art. 16(4). Percentage of reservations made in favour of Scheduled Castes (SC) and Scheduled Tribes (ST).------------------------------------------------------------ Class I Class II Class III Class IV As on ---------- ---------- ----------- ------------ SC ST SC ST SC ST SC ST------------------------------------------------------------1-1-70 . . . 2.36 0.40 3.84 0.37 9.27 1.47 18.09 3.591-1-71 . . . 2.58 0.41 4.06 0.43 9.89 1.70 18.37 3.651-1-72 . . . 2.99 0.50 4.13 0.44 9.77 1.72 18.61 3.821-1-73 . . . 3.14 0.50 4.52 0.49 10.05 1.95 18.37 3.921-1-74 . . . 3.25 0.57 4.59 0.49 10.33 2.13 18.53 3.841-1-75 . . . 3.43 0.62 4.98 0.59 10.71 2.27 18.64 3.991-1-76 . . . 3.46 0.68 5.41 0.74 11.31 2.51 18.75 3.931-1-77 . . . 4.16 0.77 6.77 0.77 11.84 2.78 19.07 4.351-1-78 . . . 4.50 0.85 6.44 0.88 12.22 2.86 19.13 4.661-1-79 . . . 4.75 0.94 7.37 1.03 12.55 3.11 19.32 5.19------------------------------------------------------------ The facts, in the statement we have digested from theReports of the Commissioner for Scheduled Castes andScheduled Tribes,228conclusively show the long distance to travel before theSC&ST members in the civil services can be said to have anda fair or at least a proportional deal. Classes II and IIIfor the whole of the central services have a range of 3.84%to 7.37% and 9.27% to 12.55% for Scheduled Castes and 0.37%to 1.03% and 1.47% to 3.11% for Scheduled Tribes while theireligibility is of the order of 15% and 7-1/2% respectively.What a grievous beeway after 33 long years may be the acidcomment of the victim sector (i.e. the harijans and thegirijans). The Central Government has countered the submission ofthe petitioners, presented persuasively by Shri Venogopal,that reservation compounded by the carry forward rule hasended up almost in cent per cent reservation to SC&STs (thuswholly excluding others from job opportunities). Thecounter-affidavit states thus: I do not admit that the Government is giving 100% reservation to the Scheduled Castes and Scheduled Tribes. I submit that normally only 15% and 7-1/2% of the vacancies by means of a roster mechanism are reserved for the Schedule Castes and Scheduled Tribes respectively. However, in the following cases, it may look as if 100% of the available vacancies are being


given to the Scheduled Castes/Scheduled Tribes......Of course, based on Rangachari (supra) the State contendsthat entry even at the promotional points isconstitutionally permitted and protected. The grievance thatjunior harijans steal a march over other senior members ofservice is exceptional rather than general, according to theRailway Board, and, in any case, is inevitable wherereservation is permissible. Furthermore the Ministry ofRailways, having regard to Art. 335 had taken special careto give training, coaching and the like, to preventinefficiency and to promote competency of SC&ST members inservice. The deponent on behalf of the Union of India hasexplained the position thus: I submit that the Ministry of Railways, in 1974 after reviewing the position of intake of Scheduled Castes and Scheduled Tribes in groups of posts filled by promotion in Railway Services, and on the basis of a recommendation made by the Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes, introduced a scheme of training of the Scheduled Castes/Scheduled Tribes employees on the jobs of the posts to which they are to be promoted. According to this scheme, if, during selection proceedings, it is found that the Scheduled Castes/229 Scheduled Tribes of requisite standards are not available for being placed on the panel, the best among them numbering to the extent of reserved vacancies i.e. who secure the highest marks, are provided with in-service training. For this purpose, such candidates are promoted an ad hoc basis for a period of six months to the grade of the post on the jobs of which they are to receive training. During the said six months’ period, the administration give them all facilities for improving their knowledge and coming upto the requisite standard, if necessary by organising special coaching classes. At the end of six months’ period, a special report is obtained on the working of such candidate which is reviewed by the General Manager or other competent authority. If, as a result of this review, they are found to have come upto the requisite standard of fitness to hold the post on regular basis, they are included in the panel and are promoted to the grade regularly. If, however, the said review reveals that such candidates, even after receiving the training on the jobs to which they are to be promoted regularly, have not come upto requisite standard of suitability, such candidates are immediately reverted to the grade from which they were given ad hoc promotion for the purpose of training. A further plea is taken that temporary promotions on adhoc basis are sometimes given to SC&ST members purely forshort duration "for the purpose of imparting them with in-service training on the jobs of the post to which theyaspire for promotion". This had to be treated as a trainingperiod rather than an unconstitutional promotion over theheads of seniors. In short, the factual submission ofmassive infiltration of incompetent harijans/girijans intothe Railway Service vertically all along the line is refutedby facts and figures. Secondly, the legal contentions of thepetitioners have also been contested by the Union of India(given earlier). In this background, we may formulate the followingpoints round which arguments have ranged and then deal withsome mini-submissions and technical objections put forward


before us. (1) Does Art. 16(1) insist on absolute equality orpermit realistic and rational classification of unequalclasses and treatment of such classes differently ? (2) Do SC&STs stand in a different class from the restof the Indian community?230 (3) Are SC&ST castes, within the scope of Art. 16(2) ?If so, does Art. 16(4) save special provisions in theirfavour in matters promotion and allied matters ? (4) Do the directives under attack impairadministrative efficiency to a degree that it is violativeof Art. 335 ? (5) Do the ten circulars reduce the fundamental rightunder Art. 16(1) to a husk or cipherise it altogether ? We must state certain constitutional fundamentals andsocietal elementals before we make a dialectical study ofthe basic issues thrown up by these cases. Most of thesubmissions made by counsel for petitioners cannot surviveRangachari and Thomas (supra) and our task is simplified byabiding by the propositions laid down therein, because thesetwin rulings bind us being of benches of five and sevenjudges. Even though we would, we could not and even thoughwe could, we would, not depart from the holdings in thesetwin land-mark cases which set the gravestone on many of thecontentions. What are the constitutional fundamentals bearing onegalite vis a vis backward classes, especially the SC&STs ?What are the social essentials afflicting the life-style ofthe SCs&STs ? What is economic backwardness as distinct fromsocial injustice and how does the Constitution strike thepath of remedial jurisprudence harmonising the demands ofboth categories? A luminous preface to the constitutional valuesnullified by social realities is found in Dr. Ambedkar’saddress to the Constituent Assembly earlier extracted, whichdraws poignant attention to the life of contradictionsbetween the explosive social and economic inequalities andthe processes of political democracy. "How long shall wecontinue to live this life of contradictions ? How longshall we continue to deny equality in our social andeconomic life?" Was the interrogation before the framers ofthe Constitution and they wanted to enforce the principle of’one man, one value’. This perspective must inform the codeof equality contained in Arts. 14 to 16. Equality being adynamic concept with flexible import this Court has readinto Arts. 14 to 16 the pragmatic doctrine of classificationand equal treatment to all who fall within each class. Butcare must be taken to see that classification is not pushedto such an extreme point as to make the fundamental right toequality cave in and collapse. (See observations in TrilokiNath Khosa and Ors. v. State of Jammu and Kashmir231 Ray, C.J. in Kerala v. Thomas epitomised the positionin a few passages: Articles 14, 15 and 16 from part of a string of constitutionally guaranteed rights. These rights supplement each other. Article 16 which ensures to all citizens equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14. Article 16(1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable classification having a nexus to be the object to be achieved. Discrimination is the essence of classification...


Classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved.... There is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection. State of Mysore v. V. P. Narasinga Rao. This equality of opportunity need not be confused with absolute equality...... Under Article 16(1) equality of opportunity of employment means equality as between members of the same class of employees and not equality between members of separate, independent class.... The rule of parity is the equal treatment of equals in equal circumstances. The rule of differentiation in enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances.... A classification in order to be constitutional must rest upon distinctions that are substantial and not merely illusory. The test is whether it has a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category.232The learned Chief Justice relied upon earlier decisions tosubstantiate this proposition. In Triloki Nath Khosa v.State of J & K(1) this Court had held that the State maymake rules guided by realities just as the legislature "isfree to recognise degrees of harm and it may confine itsrestrictions to those classes of cases where the need isdeemed to be the clearest." Thus we arrive at theconstitutional truism that the State may classify, basedupon substantial differentia, groups or classes and thisprocess does not necessarily spell violation of Arts. 14 to16 Therefore, in the present case if the SC&STs stand on asubstantially different footing they may be classifiedgroup-wise and treated separately since there is a GreatDivide between the SC&STs on the one hand and the rest ofthe Indian community on the other. This is no matter ofspeculation or investigation because the Constitution itselfhas recognised the direst socioeconomic backward status ofthese species of humanity. We may quote Ray, C.J. where heobserved: The Constitution makes a classification of Scheduled Castes and Scheduled Tribes in numerous provisions and gives a mandate to the State to accord special or favoured treatment to them. Article 46 contains a Directive Principle of State Policy- fundamental in the governance of the country enjoining the State to promote with special care educational and economic interests of the Scheduled Castes and Scheduled Tribes and to protect them from any special injustice and exploitation. Article 335 enjoins that the claims of the members the Scheduled Castes and


Scheduled Tribes to the services and posts in the Union and the States shall be taken into consideration. Article 338 provides for appointment by the President of a Special Officer for the Scheduled Castes and Scheduled Tribes to investigate all matters relating to the safeguards provided for them under the Constitution. Article 341 enables the President by public notification to specify castes, races or tribes which shall be deemed to be Scheduled Castes in the States and the Union Territories. Article 342 contains provision for similar notification in respect of Scheduled Tribes. Article 366(24) and (25) defines Scheduled Castes and Scheduled Tribes. The classification by the impugned rule and the order is with a view to securing adequate representa-233 tion to Scheduled Castes and Scheduled Tribes in the services of the State as otherwise they would stagnate in the lowest rung of the State services. Article 335 of the Constitution states that claims of members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in the making of appointments to the services and posts in connection with affairs of the State consistent with the maintenance of efficiency of administration. I had made similar observations in the same case: The Directive Principles of State Policy, fundamental in the governance of the country, enjoin on the State the promotion ’with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes... and protect them from social injustice’. To neglect this obligation is to play truant with Art. 46. Undoubtedly, economic interests of a group-as also social justice to it-are tied up with its place in the services under the State. Our history, unlike that of some other countries, has found a zealous pursuit of government jobs as a mark of share in State power and economic position. Moreover, the biggest-and expanding, with considerable State undertaking, employer is Government, Central and State, much so appointments in the public services matter increasingly in the prosperity of backward segments. The Scheduled Castes and Scheduled Tribes have earned special mention in Art. 46 and other weaker section’ in this context means not every ’backward class’ but those dismally depressed categories comparable economically and educationally to Scheduled Castes and Scheduled Tribes. Proceeding on this footing, the fundamental right ofequality of opportunity has to be read as justifying thecategorization of SC&STs separately for the purpose of"adequate representation" in the service under the State.The object is constitutionally sanctioned in terms, as Arts.16(4) and 46 specificate. The classification is just andreasonable. We may, however, have to test whether the meansused to reach the end are reasonable and do not outrun thepurposes of the classification. Thus the scope of the caseis narrowed down.234 Of course, apart from Art. 16(1), Art. 16(2) expresslyforbids discrimination on the ground of caste and here thequestion arises as to whether the Scheduled Castes andTribes are castes within the meaning of Art. 16(2). Evenassuming that there is discrimination, Art. 16(2) cannot be


invoked unless it is predicated that the Scheduled Castesare ’castes’. Terminological similarities are an illusoryguide and we cannot go by verbal verisimilitude. It is verydoubtful whether the expression caste will apply toScheduled Castes. At any rate, Scheduled Tribes areidentified by their tribal denomination. A tribe cannot beequated with a caste. As stated earlier, there aresufficient indications in the Constitution to suggest thatthe Scheduled Castes are not mere castes. They may besomething less or some thing more and the time badge is notthe fact that the members belong to a caste but thecircumstance that they belong to an indescribably backwardhuman group. Ray, C.J. in Kerala v. Thomas (supra) madecertain observations which have been extracted earlier tomake out that "Scheduled Castes and Scheduled Tribes are nota caste within the ordinary meaning of caste". Since acontrary view is possible and has been taken by some judgesa verdict need not be rested on the view that SCs are notcastes. Even assuming they are, classification, ifpermitted, will validate the differential rules forpromotion. Moreover, Art. 16(4) is an exception to Art.16(2) also. The constitutional enquiry is whether theharijan/girijan fold is so sharply marked off from the restof the Indian human family as to justify classification forconsiderate treatment in the field of public employment ? Let us be sure of the social facts. Mark Twaincynically remarked once: "Get your facts first, and them youcan distort them as much as you please." By that token, letus scan the status of the SC&STs, the result of reservationsin habilitating them into State services and the depressmentimpact on efficiency by supersession of meritorious seniors.It is a fact of our social history and a blot on ourcultural heritage that 135 million men and women, describedas SC&STs, have been suffering as "suppressed classes",denied human dignity and languishing as de facto bondedlabour. They still are, in several places, "worse than theserf and the slave" and "their social standard is lower thanthe social standard of ordinary human beings" (Ambedkar).Tortured, violated and even murdered, the saga of the SC&STsis not only one of economic exploitation but of socialostracisation. Referring to the sorrows of the suppressedshudras (what I235prefer to call the panchama proletariat) Swami Vivekanandademanded shudra raj and refuted the incapabilities of thegroaning untouchables: "Aye, Brahmins, if the Brahmin has more aptitude for learning on the ground of heredity than the Pariah, spend no more money on the Brahmin’s education but spend all on the Pariah. Give to the weak, for there all the gift is needed... Our poor people, these downtrodden masses of India, therefore, require to hear and to know what they really are. Aye, let every man and woman and child, with-out respect of caste or birth, weakness and strength, hear and learn that behind the strong and the weak, behind the high and the low, behind everyone, there is that Infinite Soul, assuring that infinite possibility and the infinite capacity of all to become great and good. Let us proclaim to every soul ’Arise, awake and stop not till the goal is reached.’ Arise, awake!To make democracy functional and the republic real thesocial and economic personality of these backwardmostsections had to be restored. From this angle, the ancient


injustice on the shudras among the shudras has to beliquidated by effective equalising measures. Power, materialpower, is the key to socioeconomic salvation and the Statebeing the nidus of power the framers of the Constitutionhave made provision for representation of these weakersections both in the legislature and the executive. More poignant is the fact that all the welfareprogrammes have been only on paper, not in practical life.With all the ’pampering’ complained of, we find that thesedowntrodden millions remain at the bottom of thesocioeconomic scale and totter in the administrativeservices surviving with difficulty and securing somepromotion here or there amidst a hostile milieu. If theconcessions, reservations, relaxations and other partisanprovisions had actually brought into the Services aconsiderable percentage at least commensurate with theirpopulation, maybe, the grievance voiced may ring true. Butas late as 1971, a former Minister, B. S. Murthy, in hisbook "Depressed and Oppressed (Forever in Agony)" has givena sombre picture of the actual plight of the harijans ofIndia and the figures of employment in Government Servicesof Scheduled Castes and Tribes as on 1-1-1970 (20 yearsafter the Constitution) furnished by him (p. 74) are telltale. In Class I services percentage-wise these castes whichconstitute 22.5% of India’s population had 0.40% in ClassII, 0.40, in236Class III, 1.47 and in Class IV, 3.41. This wassocioeconomic democracy in reverse gear and a callouspicture of under-representation in administration as ifharijans and girijans were still untouchable andunapproachable, vis-a-vis Services under the State. Once werealise with John Tyndall that "It is as fatal as itcowardly to blink facts because they are not to our taste",the wind is taken out of the sails of the case of thepetitioners. For, in truth and actual life whatever theRailway Board’s orders may say the representation of theSC&STs remains substantially below the sanctioned levelalthough fair representation, at least in proportion totheir population is what is demographically just, ignoringfor the moment the neutralisation of the iniquitions past. We must remember that Art. 14 speaks of equality beforethe law and Art. 16 vouchsafes equality of opportunity. Thesocial dynamics of equality involve the strategy ofequalisation in a society of stratification throughcasteification. One of us did observe : "In a spacious sense, ’equal opportunity’ for members of a hierarchical society makes sense only if a strategy by which the under privileged have environmental facilities for developing their full human potential. This consummation is accomplished only when the utterly depressed groups can claim a fair share in public life and economic activity, including employment under the State, or when a classless and casteless society blossoms as a result of positive State action. To help the lagging social segments, by special care, is a step towards and not against a larger and stabler equality..... It is a statistically proved social reality in India that the depressed employment position of harijans is the master problem in the battle against generations of retardation, and ’reservation’ and other solutions have made no significant impact on their employment in public services. In such an unjust situation, to maintain mechanical equality is to


perpetuate actual inequality. A battery of several programmes to fight down this fell backwardness must be tried out by the State."Subha Rao, J. in Devadasan’s case brought out the need forequalisation to produce stable equality in society by atelling imagery. Although he was in a minority on one pointin that case, that did not detract from the validity orforce of the general observations:237 Article 14 lays down the general rule of equality. Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the State. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. If it stood alone, all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only an utopian conception unless a practical content was given to it. Its strict enforcement brings about the very situation it seek to avoid. To make my point clear, take the illustration of a horse race-one is a first class-race horse and the other an ordinary one. Both are made to run from the same starting point. Though theoretically they are given equal opportunity to run the race, in practice the ordinary horse is not given an equal opportunity to compete with the race horse. Indeed, that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, what would otherwise has been a force of a competition would be made a real one. The same difficulty had confronted the makers of the Constitution at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without Adventitious aids till such time when they could stand on their own legs.A strikingly similar strain of justice thinking has beendeveloped in other jurisdictions in the field of equalprotection and benign discrimination by Polyvos G. Polyviouin his book "The Equal Protection of the Laws". It may bemeaningful to notice the argument : "....focuses on the concepts of equal treatment and equal opportunity, professes to construe them realistically, and declares that ’(t) he minority applicant does not have an opportunity "equal" to the white’s because the discriminatory denial of educational, professional and cultural opportunities for generations past has severely handicapped him in any contest of early intellectual attainment’. As Professor Cox has well put the question, ’(d) we achieve238 equality by putting each individual on the same starting line today or by giving minority applicants head-starts designed to offset the probable consequences of past discrimination and injustice against the group with which the applicant is identified ? The same author deals with ’reverse discrimination’ in


school admissions and refers to Prof. Dworkin’s socio-juraldefense of preferences: Nor should it be forgotten in this connection that, at least in terms of traditional theory, rights to equal treatment and to freedom from discrimination, as normally conceived, are personal and individual, and that ’(e)qual protection is not achieved through (the) indiscriminate imposition of inequalities for the alleged benefit of groups, however disadvantaged. Benevolent quotas and reverse discrimination on this view, fatally offend fundamental notions of individualism inherent in the notion of equality. In answer, it may be said that to regard the concept of equality simply from this (traditionally) individualistic point of view is to take an unduly restrictive view of its social function and to ignore its allegedly multifaceted character. Or, to adopt a somewhat different strategy, one may read the right to equal treatment (both the more general right to equality and the right enshrined in the constitutional guarantee of equal protection) in a particularly abstract way and formulate it in such a manner that it is not necessarily violated by the adoption of benign racial classifications. In this way, Professor Dworkin distinguishes between two ’different sorts of rights’ which individuals may be said to have. The first is the right to equal treatment, which is the right to an equal distribution of some opportunity or resource, and the second is the right to treatment as an equal, ’which is the right, not to receive the same distribution of some burden or benefit, but to be treated with the same respect and concern as anyone else’. For Dworkin it is the right to treatment as an equal that is fundamental, whilst the right to equal treatment is only derivable, and it is the former that, as a general matter, is given ’constitutional standing’ by the Equal Protection Clause. In other words, white applicants for admission to Law School who may have been turned away because of the reservation of some places for members of disadvantaged minority groups cannot (in a case like the one set out above) successfully complain, the reason being that they239 do not have a right to equal treatment in the assignment of places, but they do have the right to be treated as equals, that is, with equal respect, concern and sympathy, in the making of decisions as to which admissions standards should be used. More specifically, this right is viewed by Dworkin as meaning that each candidate for admission has a right that his interests should be looked at ’as fully and sympathetically’ as the interests of any others when decisions are being taken as to which of the many possible criteria for admission to elevate to the status of the pertinent ones. But if this condition is satisfied, rejected white applicants will fail in their contention that the particular admissions program was unfair and unconstitutional (even if they had been effectively excluded from consideration as a result of the adoption of racial criteria in determining the allocation of some of the available places). The simple question Dworkin would ask in these cases is whether the particular admissions program serves a proper policy that respects the right of all members of the community to be treated as equals, but not otherwise.


No debate is needed to uphold reservation in promotions assuch. Not only has Rangachari sustained it in regard toselection posts, Thomas’s case decided by a Bench of sevenJudges, has expressly approved Rangachari. The only questionbearing on reservation vis-a-vis promotion is as to whetherit is unconstitutional if it is extended to non-selectionposts while it is constitutional in regard to selectionposts. Anyway, Annexure F, one of the circulars sought to bequashed by the petitioners relates only to selection postsand has been expressly upheld in Rangachari’s case. Thequantum of reservation is not excessive; the field ofeligibility is not too unreasonable, the operation of thereservation is limited to selection posts and no relaxationof qualifications is written into the circular except thatcandidates of the SC&ST communities "should be judged in asympathetic manner". Moreover, administrative efficiency issecure because there is a direction "to give such staffadditional training and coaching, to bring them up to thestandard of others". The rejection of the invalidatorycontention of the petitioners is inevitable. Annexure H is bad for unconstitutionality according tothe petitioners for many reasons. For one thing, an SC/STemployee gets one grading higher than otherwise assignableto him on the record of his service. So much so, if he is’good’ he will be categorised as ’very240good’. This fiction or fraud in grading is said to be a vicerendering the promotional prospects unreasonable. We do notagree. Superficially viewed, this clumsy process ofreclassifying ability may strike one as disingenuous. Ofcourse, this concession is confined to only 25% of thetotal number of vacancies in a particular grade or postfilled in a year. So there is no rampant vice of everyharijan or girijan jumping over the heads of others. Moreimportantly, we think this is only an administrative deviceof showing a concession or furtherance of prospects ofselection. Even as under Art. 15(4) and Art. 16(4) lessermarks are prescribed as sufficient for SC&STs or extra marksare added to give them an advantage the re-grading is onemore method of boosting the chances of selection of thesedepressed classes. There is nothing shady about it. If thereis advancement of prospects of SC&ST by addition of marks orprescribing lesser minimum marks or by relaxing otherqualifications, I see no particular outrage in re-categorisation which is but a different mode of conferringan advantage for the plain and understandable reason thatSC&STs do need some extra help. It is important to note thatthe prescribed minimum qualifications and standards offitness are continued even for SC&STs under Annexure H. The other vice pointed out against Annexure H is thatthe qualifying marks in respect of SC&ST candidates issomewhat less than is applicable to candidates of unreservedgroups. There is no merit in this objection and no goodground exists which militates against the constitutionalityof Annexure H. Annexure I is also unexceptionable since all that itdoes: is to readjust the proportion of reservation inconformity with the latest Census. Posts for whichrecruitment, realistically speaking, takes place on aregional basis are subjected to reservation taking intoaccount the percentage of SC&ST population in the concernedState. This is also reasonable. Likewise, the carry forwardrule being raised from 2 years to 3 years also cannot bestruck down. It must be realised that law is not an


abstraction but an actual prescription in action. So what wehave to be more careful about is to scrutinise whether thecarry forward rule by being increased to 3 years is going toconfer a monopoly upon the SC&ST candidates and depriveothers of their opportunity for appointment. From thepercentage furnished by the Railway Board we find that evenif we carry forward vacancies for any number of years thereis no prospect, within the reasonable future, of sufficientnumber of SC & ST candidates turning up to fill them. Thereis a provision that if sufficient number of candidates fromthe SC & ST are not found, applicants from the unreservedcommunities will be given the appointment provisionally.After 3 years those vacancies cease to be reserved. Going bythe actuals it is clear that no serious infraction of241any individual’s fundamental right under Art. 16(1) takesplace and no monopoly is conceivably conferred on SC&STcandidates, they are not available in sufficient numbers toreach anywhere near the percentage reserved. Even going by the majority, Devadasan’s case ( ’ )lays down the proposition that under Art. 16(4) "reservationof a reasonable percentage B of posts for members of theScheduled Castes and Tribes is within the competence of theState. What the percentage ought to be must necessarilydepend upon the circumstances obtaining from time to time."Madholkar, J. speaking for the majority has struck down onlyone restriction. "In order to effectuate the guarantee eachyear of recruitment will have to be by itself and therepresentation for backward communities should not be soexcessive as to create a monopoly or to disturb unduly thelegitimate claims of other communities." (emphasis added).Unlimited reservation of appointments may be impermissiblebecause it renders Art. 16(1) nugatory. At the same time,Art. 16(4), calculated to promote social justice andexpressive of the deep concern of the Constitution for thelimping bracket of Indians, must be given full play. That iswhy the only restraint imposed by Mudholkar, J. is that anexercise of power under Art. 16(4) "does not mean that theprovision made by the State should have the effect ofvirtually obliterating the rest of the Article, particularlyclauses (1) and (2) thereof."(’) By the three-year ’carryforward’ rule one is unable to see how, in practice, thetotal vacancies will be gobbled up by the harijan/girijangroups "virtually obliterating" Art. 16(1). The court hasmade it very clear that the problem of giving adequaterepresentation to backward classes under Art. 16(4) is amatter for the Government to consider, bearing in mind theneed for a reasonable balance between the rival claims aspointed out in Balaji’s case.(2) It is true that in Balaji’s case and Devadasanscase(l) ’the carry forward’ rule for backward classes forexceeded 50% and was struck down. We must remember that thepercentage of reservation for backward classes includingSC&ST was rather high in both the cases. In Devadasan’s casethe court went into the actuals, not into the hypothetical.This is most important. The Court actually verified thedegree of deprivation of the ’equal opportunity’ right anddiscovered: (3 ) In the case before us 45 vacancies have actually been filled out of which 29 have gone to members of the Scheduled (1) [1964] 4 SCR 680 at 695. (2) [1963] Supp. 1 SCR 439. (3) Ibid at 693-94.242


Castes and Tribes on the basis of reservation permitted by the carry forward rule. This comes to about 64.4% of reservation. Such being the result of the operation of the carry for ward rule we must, on the basis of the decision in Balaji’s case hold that the rule is bad. (emphasis added)What is striking is that the Court did not take an academicview or make a notional evaluation but checked up to satisfyitself about the seriousness of the infraction of the right.On that footing, the petitioners have not demonstrated thatin any particular year, virtually and in actual terms ofpromotion, there has been-a substantial excess over 50% infavour of the SC&ST promotees. Mathematical calculations,departing from realities of the case, may startle us withoutjustification, the apprehension being misplaced. All that weneed say is that the Railway Board shall take care to issueinstructions to see that in no year shall SC&ST candidatesbe actually appointed to substantially more than 50% of thepromotional posts. Some excess will not affect asmathematical precision is different in human affairs, butsubstantial excess will void the selection. Subject to thisrider or condition that the ’carry forward’ rule shall notresult, in any given year, in the selection or appointmentsof SC&ST candidates considerably in excess of 50%, we upholdAnnexure I. Heated arguments about the hurt caused by Annexure ’J’have been addressed to us. It deals with the 40-point rosterand the posts allotted to the SC&ST allottees. Once thefundamental premises are accepted there is nothingunreasonable or wrong in Annexures 1 and 2 to Annexure J. Itis significant that with a view to prevent total exclusionof others there is a provision that if there are only twovacancies in a given year, in more than one may be treatedas reserved and if there is only one vacancy, it should betreated as unreserved. Implementation of reservationsnecessarily involves practical steps like evolving a rostersystem. Once the parameters of reservation are within theframework of the fundamental rights, minute scrutiny ofevery administrative measure and hunting forunconstitutionality is not permissible. Far more serious is the criticism of Annexure ’K’ onthe basis of which reservations were introduced even topromotion posts filled by the ’seniority-cum-suitability’rule. Some other relaxations and con cessions also aregranted under it to SC/ST candidates. But the maximum mayheminflicted by Annexure K is in the extension of the operationof promotional reservation to non-selection posts. It wasurged that Rangachari (supra) did not cover non-selectionposts and, there243fore, could not be an authority to sustain its validity.There is no force in this submission. The sting of the argument against reservation is thatit promotes inefficiency in administration by choosing sub-standards candidates in preference to those with bettermettle. Competitive skill is more relevant in higher posts,especially those where selection is made by competitiveexaminations. Lesser classes of posts, where promotion issecured mechanically by virtue of seniority except where thecandidate is unfit, do not require a high degree of skill asin the case of selection posts. (See 1968 1 SCR p. 721 at734). It is obvious that as between selection and non-selection posts the role of merit is functionally more ‘relevant in the former than in the latter. And if inRangachari reservation has been held valid in the case of


selection posts, such reservation in non-selection posts isan afortiori case. If, in selecting top officers you mayreserve posts for SC/ST with lesser merit, how can yourationally argue that for the posts of peons or lowerdivision clerks reservation will spell calamity ? The partthat efficiency plays is far more in the case of higherposts than in the appointments to the lower posts. On thisapproach Annexure K is beyond reproach. One may easily sympathise with holders of non-selection posts. They are many in number in the lowerstations of life. They are economically backward andburdened with the drudgery of life. That is why there is aballyhoo raised by a larger number of people when somecategories in far more distressing social situations enterthe arena with preferential treatment. Looking at theproblem from the point of view of law and logic and theconstitutional justification under Art. 16(4) forreservation in favour of the panchama proletariat there isnothing to strike down in Annexure K. As between thesocially, even economically depressed and the economicallybackward, the Constitution has emphatically cast itspreference for the former. Who are we, as Judges to questionthe wisdom of provisions made by Government within theparameters of Art. 16(4)? The answer is obvious that thewrit of the court cannot quash what is not contrary to theConstitution however tearful the consequences for those whomay be adversely affected. The progressive trend must, ofcourse, be to classify on the have-not basis but the SC/ST,category is, generally speaking, not only deplorably poorbut also humiliatingly pariah in their lot. Maybe, some ofthe forward lines of the backward classes have the best ofboth the words and their electoral muscle qua caste scaresaway even radical parties from talking secularism to them.We are not concerned with that II dubious brand. In the longrun, the recipe for backwardness is not creating a vestedinterest in backward castes but liquidation of handi244caps, social economic, by constructive projects. All this isin another street and we need not walk that way now. Trite arguments about efficiency and inefficiency area trifle phoney because, after all, at the higher levels theharijan/girijan appointees are a microscopic percentage andeven in the case of Classes III and II posts they arenegligible. The preponderant majority coming from the wellreserved communities are presumably efficient and thedilution of efficiency caused by the minimal induction of asmall percentage of ’reserved’ candidates cannot affect theover-all administrative efficiency significantly. Indeed, itwill be gross exaggeration to visualise a collapse of theAdministration because 5 to 10% of the total number ofofficials in the various classes happen to be sub-standard.Moreover, care has been taken to give in-service trainingand coaching to correct the deficiency. It is fashionable to say-and there is, perhaps, sometruth in it- that from generation to generation there is adeterioration in efficiency in all walks of life frompolitics to pedagogy to officialdom and other professions.Nevertheless, the world has been going forward and onlyparties whose personal interest is affected forecast a doomon account of progressive deficiency in efficiency. We arenot impressed with the misfortune predicted aboutgovernmental personnel being manned by morons merely becausea sprinkling of harijans/girijans happen to find their wayinto the Services. Their apathy and backwardness are suchthat in spite of these favourable provisions, the


unfortunates have neither the awareness nor qualifiedmembers to take their rightful place in the Administrationof the country. The malady of modern India lies elsewhere,and the merit-mongers are greater risks in many respectsthan the naive tribals and the slightly better off lowcastes. Nor does the specious plea that because a fewharijans are better off, therefore, the bulk at the bottomdeserves no jack-up provisions merit scrutiny. A swallowdoes not make a summer. Maybe, the State may, when socialconditions warrant, justifiably restrict harijan benefits tothe harijans among the harijans and forbid the higherharijans from robbing the lowlier brethren We have adverted to Annexure M earlier in thisjudgment which shows the determination of Government toimpart in-service training to those SC&ST candidates who arefound to be below par. Even temporary promotions on an adhoc basis are limited to six months only to give trainingand experience than the spoil permanently the efficiency ofthe system. The Annexure has come under attack because thereservation quota has been raised thereby from 50 to 66-2/3%. We have earlier dis245cussed this aspect and pointed out that what is important isnot so much the figures mentioned on paper but the facts andcircumstances in real life. We have also entered a caveatthat in any particular year there shall not, as a fact, be asubstantial increase upon 50% of induction of ’reserved’candidates. It is true that Shri Venugopal, counsel for someof the petitioners tried to demonstrate that on account ofreservation percentages coupled with the carry forward ruleit is perfectly within the realm of possibility that in someyears a monopoly may be conferred on the SC&ST candidatesfor certain categories or classes of posts. The mystic"maybe" do not scare us. The actual "must be" will alert us.The Constitution deals with social realities, notspeculative possibilities. I have limited the physicaloperation of reservation in any particular year in such amanner that there will be a real opportunity for theexercise of the right under Art. 16(1) for every candidateof the unreserved communities. Certain minor attacks such as that a candidate of theSC&ST communities who has failed may still be tried if othersuccessful candidates from those communities are notforthcoming. This may seem strange disbelief in examinationsas measure of merit. But to read stray provisions inisolation may be unfair to the scheme. Look at the desperateState in which Government is trying to give fairrepresentation to harijans/girijans in Administration. Thesemiserables suppressed by centuries of trampling are stillslumbering despite inducements to awaken. It is a geneticcalumny and unscientific assertion to castigate the SC&STcommunities as possessed of less intellectual potential whatwith Valmiki and Vyasa to Baba Sahib Ambedkar. The darkeningand be numbing environment of ages in which shudras andpanchamas have suffered their mental powers to be chainedaccounts for their seeming, retardation. Once brighteratmosphere and better opportunity enliven their talent theircontribution to the Indian treasury will raise the humanresources and democratic status of Bharat. A democracy oftalent is an inarticulate major premise of our culture. Thefundamental question arises as to what is "merit" and"suitability". Elitists whose sympathies with the masseshave dried up are, from the standards of the Indian people,least suitable to run Government and least meritorious tohandle state business, if we envision a Service State in


which the millions are the consumers. A sensitized heart anda vibrant head, tuned to the tears of the people, willspeedily quicken the developmental needs of the country,including its rural stretches and slum squalour. Sincerededication and intellectual integrity-these are some of themajor components of "merit" and "suitability"-not degreesfrom Oxford or Cambridge, Harvard or Stanford or simian,though Indian,246institutions. Unfortunately, the very orientation of ourselection process is distorted and those like the candidatesfrom the SC&ST who, from their birth, have had a traumaticunderstanding of the conditions of agrestic India have, inone sense, more capability than those who have lived underaffluent circumstances and are calIous to the human lot ofthe sorrowing masses. Moreover, our examination system makesmemory the master of ’merit’ and banishes creativity intoexile. We need not enter these areas where a fundamentaltransformation and a radical re-orientation even in theassessment of the qualities needed by the personnel in theAdministration and the socialist values to be possessed bythe echelons in office is a consummation devoutly to bewished. This may have to be subjected to a national debate.The colonial hangover still clings to our selectionprocesses with superstitious tenacity and narrower conceptsof efficiency and merit are readily evolved to push outGandhis and J.Ps, Ambedkars and Nehrus, to mention but a fewwho knew the heart-beats of the people. I diva gate and makethese observations only to debunk the exaggerated argumentabout harijans and girijans being sub-standard. We may putaside this angle of vision and approach the problemtraditionally because every new idea has resistance toencounter before acceptance, every original thought has beenbranded a hearsay. Be that as it may, the constitutionalmerits of the various Board Circulars now discussed do notwarrant their judicial ’execution’-subject to certaincautionary limitations already indicated. The argument that there are rich and influentialharijans who rob all the privileges leaving the serf-levelsufferers as suppressed as ever. The Administration may wellinnovate and classify to weed out the creamy layer of SC&STbut the court cannot force the State in that behalf. For a comparative thought we may glance at Polyviou’s’The Equal protection of the laws’: (’) "A third argument traditionally employed against the use of preferential discrimination is that affirmative measures of the kind discussed here may significantly curtail efficiency. It does indeed stand to reason that the immediate result of benignity in admission and selection process will almost certainly be the selection of those who are not as competent or as able as some of those left out. ’Special admission programmes, almost by definition, operate to in sure that students are placed in schools for which they are (1) The equal protection of the laws by G. Polyviou p.360.247 not qualified ! The same objection applies with equal, if not more, force to the area of employment and elsewhere. One possible answer is that the importance of efficiency must be compared with and ultimately set against the significance of integration or the prevention of discrimination, and that integration and the rectification of socially harmful deprivation are the more pressing needs. Or one can fall back on the


very different arguments that traditional admission processes are unfair because these are geared to the usual type of applicant and that preferential treatment after all only seeks to counteract such inherent bias. There is a human problem behind these writ petitionswhich we clearly appreciate. Most of the Classes II, III andIV employees are economically backward and struggle forsurvival what with price spirals and other tribulations.They hope, after years of yeomen service, to get somepromotion and augment their poor resources in the afternoonof their life. Then they find another class, with which theConstitution shows ultra sympathy, elbowing them out, not ona massive scale, but minimally. Even this marginal pushhurts these species living at subsistence level and so theyscream. The economically backward and the socio-economicallybackward truly belong to the ’have-not’ camp and mustjointly act to bring about a transformation of the economicorder by putting sufficient pressure and make Art. 38 aliving reality. Estrangement between the two categoriesweakens the militancy of a joint operation to inject socialjustice in the current economic order. The truth is that theemployment market is distressingly a musical chair businessand when starvation faces men their sympathy for their farweaker brethren vanishes. The true solution for thecountry’s problems, as reflected in these writ petitions, isin developmental expansion involving the millions, ratherthan denial to the weakest sector of Indian life the morselto which it is justly entitled. Even Administration will dowell to remember that Indian despair, after infinitepatience, may augur danger unless ’the sorry scheme ofthings entire’ is remoulded nearer to Art. 38. Even theseobservations are made only to emphasise that the legalcontent of the contentions put forward by the petitioners isless than presentable although their economic grievance maybe agonisingly genuine. The Court has its limitations unlikethe Administration and can give justice only under theConstitution and not over it. The human pressure behind these writ petitions is thechronic drought of employment opportunities despite talentenough to make248deserts bloom. So long as this scarcity persists and powergoes with office, the jaundiced politics of snatching thejobs going, initially or at promotion level, by hook orcrook, is the only ’development’ that takes place, whateverthe National Plans proclaim. The vast human potential of theharijans and girijans, on-fifth of the Indian people, goesto thistles and every communal effort to twist the politicsof power for promoting chances of getting jobs becomesinevitable caste being a deeprooted pathology in ourcountry. Thus jobbery, politics, casteism and elections makean unholy, though invisible, alliance against nationaldevelopment which alone can liberate Indians from social andeconomic privation. If democracy itself thus plays into thehands of hostile forces, the jurisprudence of keeping thebackward as backward and perpetuation of discrimination as avested caste right may prevail as a rule of life. The remedy of ’reservations’ to correct inheritedimbalances must not be an overkill. Backward classes,outside the Scheduled Castes and Tribes, cannot bypass Art.16(2) save where very substantial cultural and economicdisparity stares at society. The dubious obsession with’backwardness’ and the politicking with castes labelledbackward classes may, on an appropriate occasion, demandjudicial examination. The politics of power cannot sabotage


the principles of one man, one value. No sociologicalexplanation for the flood of ruinous writ petitionsregarding service conditions can be found except on thisbasis. Behind the writ petitions we deal with now is casteclamour to keep all the jobs safe from being ’robbed’ by’reserved’ communities. It is forward caste versus backwardcaste, wearing the casteless caste-marks! And the politicalprocess is likewise caste-polluted Gunnar Myrdal writes inhis Asian Drama: ( ’ ) The type of appeal that can be made by politicians has also changed greatly since the liberation movement. They can no longer put the blame for poverty and stagnation on colonial masters, but must explain why there is not great progress now that India is independent Thus a key to the understanding of the power of the political bosses is the inherited social stratification of India and, above all, its caste system. At election times the caste groups function as political vote banks whereby the ballots of their members are joined to the candidate with a party label. For this reason alone the local political bosses have a vested interest in preserving the social and economic status quo and exploiting it as a matrix for political action. (1) Gunnar Myrdal, Asian Drama, Vol. I, pp.249M. N. Srinivas, the noted sociologist is more than right (1)A One cannot help wondering whether the drive to political maturity is, after all, a good thing in a country which has still not had a proper social revolution. It may well result in premature old age.We need now, not stagnation wearing the mask of stabilityand scrambling acrimoniously over the same shrunken cake,but progress by the constructive process of explosive ruraldevelopment and exploitation of the untapped human potentialof the Scheduled Castes and Scheduled Tribes. Sterile’reservations’ will not help us go ahead unless, alongsideof it, we have heroic national involvement of the masses inactual action, not paper-logged plan exercises. In the lastanalysis, privation can be banished only by production,discontent by distributive justice and litigation bysocially relevant Justice. The writ petitions are,regrettably, negative, although the driving force of penurydeserves sympathy. This, perhaps, is a materialistinterpretation of ’service litigation’ and a trim foot-noteto these writ petitions. D Before I conclude, I must strike a futuristic note.Excellence and equality may cooperating fruitfully and neednot compete destructively. Ultimately harijan/girijanmilitancy must find fulfillment in effective main-streamingand creative contribution. While they have miles to go, theyhave promises to keep. The poignant words of the ReverendJesse Jackson come to my mind (1) "I don’t see how, we can survive as a people if we don’t have a great push for excellence now....A lot of what we’ve done in the past will be in vain if we don’t. We can make one of the most valid contributions to Western civilization, even more of a contribution than slavery. Because slavery was our great contribution against our will. Now it’s time for us to make a great contribution as an act of will." Given the opportunity and the environment, the Indiandalits can make India great and give up crutches.


The writ petitions as well as the Special LeavePetitions cannot but be dismissed. PATHAK, J.-My brothers Krishna Iyer and ChinnappaReddy are agreed that the writ petitions should bedismissed. They have held against the petitioners on theseveral contentions raised in the (1) M. N. Srinivas, "Changing Attitudes in India Today" Yogana, October I 1961, p. 26.250case. With respect, I find myself unable to agree with allthat they have said. I intend to confine myself here to certain aspects ofthe case which appear to possess a fundamental importance. Three provisions of the Constitution relate toreservations for Scheduled Castes and Scheduled Tribes. Theyare Art. 46, Art. 16(4) and Art. 335. The three form asingle frame of reference. Art. 46, a Directive Principle ofState Policy, proclaims the principle that the State shallpromote with special care the educational and economicinterests of the weaker sections of the people, and, inparticular, of the Scheduled Castes and the ScheduledTribes, and shall protect them from social injustice and allforms of exploitation. One of the modes in which theeconomic interests of the Scheduled Castes and ScheduledTribes can be promoted is the reservation of appointments orposts in their favour in services under the State where theyare not adequately represented. Art. 16(4) declares thatwhen the State intends to make such provision nothing inArt. 16 shall prevent it from doing so. The equality ofopportunity guaranteed to all citizens in matters relatingto employment or appointment to any office under the Statewill not restrain the State from making such reservation. Itis now well accepted that the "equality provisions of PartIII of the Constitution constitute a single code,illustrating the multi-faceted character of the centralconcept of equality. Art. 16(4) also is one facet. Itenables a backward class of citizens, by the process ofreservation in Government service, to move along the road toultimate equality with the more advanced classes. It is partof the process of equalization. Then follows Art. 335. Itprovides that the claims of the members of the ScheduledCastes and Scheduled Tribes shall be taken intoconsideration in the making of appointments to services andposts in connection with the affairs of-the Union or aState, but-and this is imperative-such consideration must beconsistent with the maintenance of efficiency ofadministration. The paramount need is to maintain theefficiency of administration. That is dictated by the commongood. It embraces the need of all, the national good, andnot of a mere section of the people. To its primacy all elseis subordinate. Therefore, whatever is done in consideringthe claims of the Scheduled Castes and Scheduled Tribes mustbe consistent with that supreme need, the maintenance ofefficiency of administration. Art. 335, it must be clearlystated, does not contain a positive principle, theadvancement of Scheduled Castes and Scheduled Tribes, and anegative principle, the maintenance of efficiency ofadministration. This analysis of the article does not251truly comprehend its contents. - It contains a singleprinciple, the A advancement of Scheduled Castes andScheduled Tribes, but through modes and avenues which mustnot detract from the maintenance of an efficientadministration. That limitation is imposed as a clear andpositive condition.


A generally acknowledged and long establishedprinciple for securing an efficient administration isthrowing open the doors to general recruitment, eitherdirectly or by promotion, where the governing criterion isexcellence and the emphasis is solely on quality. I he netof selection is spread far and wide, and the competitivebest are collected, regardless of religion, race, caste,sex, descent, place of birth or residence. However, a quotaof the posts may be reserved in favour of a backward classof citizens, but the interests of an efficientadministration require that at least half the total numberof posts be kept open to attract the best of the nation‘stalent and not more than half be made the sum of reservedquotas. If it was otherwise, an excess of reserved quotaaswould convert the State service into a collective membershippredominantly of backward classes. This, it is evident, willbe inconsistent with the all-important goal of maintainingthe efficiency of administration. In considering theproportion of reserved quotas in the context of collegeadmissions, this (’court laid down in M. R. Balaji v. Stateof Mysore(’) that broadly a special provision providing forreservation should be less than 50%, .and how much less than50% would depend upon the relevant prevailing circumstancesin each case. And, in this connection, Gajendragadkar, J.(as he then was) speaking for the Court, observed: " .. when the State makes a special provision for the advancement of the weaker sections of society specified in Art. 15(4), it has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker elements; the extent of the problem must be weighed, the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant considerations." (Emphasis supplied)The Court struck down the reservation of 68% asconstitutionally Invalid. (1) [1963] Supp. 1 S.C.R. 439. 470.252 The principle that reserved quotas should not togetherexceed 50% of the vacancies available in a year was affirmedby this Court, by a majority of four learned judges to one,in T. Devadasan v. Union of India,(’) as the reason forstriking down a "carry forward" rule which, for promotionsin the Central Secretariat Service, permitted a carryforward for two successive years of the annual reservedquota. It was found in that case that observance of the rulehad resulted in 65%, of the vacancies of the year beingfilled by reserved quotas, current and carried forward. The"carry forward" rule was held constitutionally invalid onthe basis that for the purpose of Art. 16(1) each year ofrecruitment had to be considered as a distinct unit forapplying the 50% rule. Mudholkar, J., on behalf of themajority, said: "We would like to emphasize that the guarantee contained in Art. 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or


appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities." It seems to me that apart from the impact that anexcessive reservation in a particular year is bound to haveon the general community of citizens, there is the furtherfar-reaching significance this assumes in the context ofArt. 335. The maintenance of efficiency of administration isbound to be adversely affected if general candidates of highmerit are correspondingly excluded from recruitment becausethe large bulk of the vacancies, numbering anything over50%, is allotted to the reserved quota. In view of a maximumage limit invariably prescribed, some of such meritoriouscandidates may be loss to the service altogether. Viewed inthat light, a maximum of 50% for reserved quotas in theirtotality is a rule which appears fair and reasonable, justand equitable, and violation of which would contravene Art335. (1) [1964] 4 S.C.R. 680.253 It has been urged by the respondents that Devadasn(supra) is A no longer good law in view of the 7-Judgedecision in State of Kerala v N. M. Thomas(’). It doesappear from some of the individual Judgments delivered inthe latter case that although Devadas (supra) has not beenexpressly overruled by a majority of the Bench there areobservations by the majority of Judges which throw doubt onthe validity of the principle enunciated by it andultimately the Court has upheld the promotion of 34Scheduled Caste and Scheduled Tribe candidates among thetotal promotion of 51 candidates. It would seem then thatthere is an apparent conflict between Devadas (supra) and N.M. Thomas (supra). The validity of Rule 13AA of the KeralaState and Subordinate Service Rules, 1958 was questioned inN. M. Thomas (supra). That Rule permitted the exemption ofScheduled Caste and Scheduled Tribe members from passing thepromotion tests for a specified period. That more than 50%of the promotions went to the Scheduled Caste and ScheduledTribe candidates was a consequence of the operation of Rule13AA. It is doubtful whether the petitioners’ challenge tothe "carry forward" rule can avoid what has been said in N.M. Thomas (supra) and, therefore, a conclusion in theirfavour does not seem possible in this case. As the positionis not clear, and in any event as my learned brothers havetaken a definite view in favour of the "carry forward" rule,I have confined myself to expressing these observations. The petitioners have challenged other provisionsprescribed in favour of members of the Scheduled Castes andScheduled Tribes and have attempted to support theirsubmissions by reference to data purporting to prove thatthose measures have resulted in reverse discrimination andare also inconsistent with the maintenance of efficiency ofadministration. We have been taken through charts andstatistics among other documentary material but the materialplaced before us does not clearly and definitely establishwhat it seeks to prove. In the circumstances, it is notpossible to record a finding in favour of the petitioners onthose points. G Accordingly, the writ petitions are dismissed butwithout any order as to costs. CHINNAPPA REDDY J.-In the name of Equality (ofopportunity), we are asked to deny Equality (of


opportunity), in these Writ Petitions. That we cannot do andthat we will not do. If we do that we will be subverting thespirit and the sense of the Constitution. The (1) [1976] 1 S.C.R. 906.254petitioners claim that their Fundamental Right to Equalityof Opportunity in the matter of public employment,guaranteed by Art. 16(1) of the Constitution has beenflouted by a series of orders and circulars issued by theRailway Board reserving posts at several levels and makingvarious concessions in favour of members of the ScheduledCastes and the Scheduled Tribes. This has been done, it isclaimed, at the cost of efficiency, though forbidden by Art.335 of the Constitution. The plain answer of the respondentsis that everyone of the orders and circulars has thebacking of Art. 16(1), 16(4) and other special provisions ofthe Constitution and that the alarm of inefficiency isnothing but a bogey. My brother Krishna Iyer, J. has considered thequestions raised in his own characteristic, scintillatingway and in some depth. Though respect for my brother wouldordinarily prevent me from venturing to write a separateopinion, specially when I agree whole heatedly with hisconclusions and the, route traversed by him, I propose tomake, in this case, certain general observations because Iexpect the same questions to be raised repeatedly indifferent situations and in different forms and it is justas well that I project my own prosaic and pedestrian pointof view, without going into the detail or depth alreadyexplored by my brother. The class of people known compendiously as ’theScheduled Castes’, recognized and described as such in theConstitution of India have been treated as ’casteless’outcastes and untouchables and have been oppressed andsubjected to every manner of depravation and discriminationfor centuries upon centuries by a unique system of socialand economic segregation, a system of "graded inequality"(Dr. B.R. Ambedkar), of "gradation and degradation" (Dr.C.R. Reddy) and of "gigantic cold-blooded repression" (Rabindranath Tagore). And for centuries they were evenprevented from protesting their plight. Nor was any attemptmade by the superior and elitist classes to know anythingabout them. All that a Scheduled Caste parent could do wasto lament: "Hush, my child; don’t cry, my treasure; Weeping is in vain, For the enemy will never Understand our pain. For the ocean has its limits Prisons have their walls around But our suffering and our torment have no limit and no bound."Then, in 1950, came the Constitution rousing expectations,raising hopes, making promises and generally heralding anew, a bitter and255a more decent life for the underprivileged and the oppressedpeople of India. While the preamble to the Constitutionproclaims the resolution of the people to constitute Indiainto a Sovereign (also. ’Socialist, Secular’, Since the 42ndAmendment) Democratic Republic and to secure to all itscitizens, "Justice, Social, economic and political" and"Equality of Status and opportunity" and to promote’Fraternity, assuring the dignity of the individual", whilethe Right to Equality before the Law (Art. 14) and Equalityof Opportunity n the matter of public employment (Art. 16)


are guaranteed as Fundamental Rights and while the State isenjoyed by the Directive Principles of State Policy topromote the welfare of the p people by securing a socialorder in which justice, social, economic and political shallinform all the institutions of the national life Art. 38(1),to endeavour to eliminate inequalities in status, facilitiesand opportunities Art. 38 (2), and, to direct its policytowards securing that the ownership and control of thematerial resources of the community are so distributed asbest to subserve the common good Art. 39(b) and that theoperation of the economic system does not result in theconcentration of wealth and means of production to thecommon detriment Art. 39(c), pursuant to the very preambleand the provisions of the Constitution, special provisionshave been made. in particular, for the protection andadvancement of the Scheduled Castes and the Scheduled Tribesin recognition of their existing, low social and economicstatus and the consequent inability and failure on theirpart to avail themselves of any opportunity for self-advancement. It is recognized that the failure of the Stateto create a climatic situation and provide the necessaryimpetus for the increasing participation of the members ofthe Scheduled Castes and the Scheduled Tribes in the publicservices would tentamount to a denial to them of equalopportunity in the matter of public employment. Art. 335which is included in part XVI of the Constitution dealingwith ’special provisions relating to certain classes’expressly provides: "The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs to the Union or of a State." Art. 46, one of the Directive Principles of StatePolicy, enjoins: "The State shall promote with special care the educational and economic interest of the weaker sections of the256 people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social in justice and all forms of exploitation." - i Art. 16 (1) and 16 (4) which guarantee equality ofopportunity in matters of public employment read as follows: "16 (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State." "16 (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State is not adequately represent in the services under the State " Art. 16 (2) which bars discrimination on certainrounds is as follows: "16 (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State." Now, it has been said, very rightly, a Constitutionalinstrument is sui generis and, obviously and necessarily,its interpretation cannot always run on the same lines asthe interpretation of statutes made in exercise of thepowers conferred by it. A constitution, like ours, born of


an anti-imperialist struggle, influenced by Constitutionalinstruments, events and r evolutions elsewhere, in search ofa better world and wedded to the idea of justice, economic,social and political, to all, must receive a generousinterpretation so as to give all its citizens the fullmeasure of justice so proclaimed instead of ’the austerityof tabulated legalism’(1). And so, when the Constitutionalinstrument to be expounded is a constitution like the IndianConstitution, the expositors are to concern themselves notwith words and mere words only, but, as much, with thephilosophy or what we may call ’the spirit and the sense’ ofthe Constitution. Here we do not have to venture upon avoyage of discovery to find the spirit and the sense of theConstitution; we do not have to look to any extraneoussources for inspiration and guidance; they may be sought andfound in the Preamble to the Constitution, in the DirectivePrinciples of State Policy, and other such provisions. See Minister of Home Affairs : [1979] (3) All E.R. 21.257 Because Fundamental Rights are justiciable andDirective Principles are not, it was assumed, in thebeginning, that Fundamental Rights held a superior positionunder the Constitution than the Directive Principles, andthat the latter were only of secondary importance ascompared with the Fundamental Rights. That way of thinkingis of the past and has become obsolete. It is nowuniversally recognised that the difference between theFundamental Rights and Directive Principles lies in thisthat Fundamental Rights are primarily aimed at assuringpolitical freedom to the citizens by protecting them againstexcessive State action while the Directive Principles areaimed at securing social and economic freedoms byappropriate, State action. The Fundamental Rights areintended to foster the ideal of a political democracy and toprevent the establishment of authoritarian rule but they arcof no value unless they can be enforced by resort to Courts.So they are made justiciable. But, it is also evident thatnotwithstanding their great importance, the DirectivePrinciples cannot in the very nature of things be enforcedin a Court of law. It is unimaginable that any Court cancompel a legislature to make a law If the Court can compelParliament to make laws then Parliamentary democracy wouldsoon be reduced to an oligarchy of Judges. It is in thatsense that the Constitution says that the DirectivePrinciples shall not be enforceable by Courts. It does notmean that Directive Principles are less important thanFundamental Rights or that they are not binding on thevarious organs of the State. Art. 37 of the Constitutionemphatically states that Directive Principles are’nevertheless Fundamental in the governance of the countryand it shall be the duty of the State to apply theseprinciples in making laws. It follows that it becomes theduty of the Court to apply the Directive Principles ininterpreting the Constitution and the laws. The DirectivePrinciples should serve the Courts as a code ofinterpretation. Fundamental Rights should thus beinterpreted in the light of the Directive Principles and thelater should, whenever and wherever possible, be read intothe former. Every law attacked on the ground of infringementof a Fundamental Right should, among other considerations,be examined to find out if the law does not advance one orother of the Directive Principles or if it is not indischarge of some of the undoubted obligations of the State,constitutional or otherwise, towards its citizens or


sections of its citizens, flowing out of the preamble. theDirective Principles and other provisions of theConstitution. So, we have it that the Constitutional goal is theestablishment of a Socialist Democracy which Justice,economic, social and political258is secure and all men are equal and have equal opportunity.Inequality, whether of status, facility or opportunity, isto end, privilege is to cease and exploitation is to go. Theunder-privileged, the deprived and the exploited are to beprotected and nourished so as to take their place in anegalitarian society. State action is to be towards thoseends. It is in this context that Art. 16 has to beinterpreted when State action is questioned as contraveningArt. 16. Let us now take a look at Art. 16(1) and Art 16(4).Art. 16(1) guarantees equality of opportunity for allcitizens in matters relating to employment or appointment toany office under the State. To the class of citizens who areeconomically and socially backward this guarantee will be nomore than mere wishful thinking, and mere ’vanity....windand confusion", if it is not translated into reality bynecessary state action to protect and nurture such class ofcitizens so as to enable them to shake off the heart-crushing burden of thousand years’ deprivation from theirshoulders and to claim a fair proportion of participation inthe Administration. Reservation of posts and all othermeasures designed to promote the participation of TheScheduled Castes and the Scheduled Tribes in the PublicServices at all levels are in our opinion necessaryconsequences flowing fro the Fundamental Right guaranteed byArt. 16(1)S This very idea is emphasised further by Art.16(4). Art. 16(4) is not in the nature of an exception toArt. 16(1). It is a facet of Art. 16(1) which fosters andfurthers the idea of equality of opportunity with specialreference to an under privileged and deprived class ofcitizens to when egalite de droit (formal or legal equality)is not egalite de fait (practical or factual equality). Itis illustrative of what the State must do to wipe out thedistinction between egalite de droit and egalite de fait. Itrecognises that the right to equality of opportunityincludes the right of the underprivileged to conditionscomparable to or compensatory of those enjoyed by theprivileged. Equality of opportunity must be such as to yield’Equality of Results’ and not that which simply enablespeople, socially and economically better placed, to winagainst the less fortunate, even when the competition isitself otherwise equitable. John Rawls in ’A Theory ofJustice’ demands the priority of equality in a distributivesense and the setting up of the Social System "so that noone gains or loses from his arbitrary place in thedistribution of natural assets or his own initial positionin society without giving or receiving compensatoryadvantages in return". His basic principle of social justiceis: "All social primary goods-liberty and opportunity,income and wealth, and the bases of self-respect-are to bedistributed equally unless an unequal distribution of any orall these goods is to the advantage of the least259favoured". One of the essential elements of his conceptionof social A justice is what he calls the principle ofredress: "This is the principle that undeserved inequalitiescall for redress; and since inequalities of birth andnatural endowment are undeserved, these inequalities are


somehow to be compensated for". Society must, therefore,treat more favourably those with fewer native assets andthose born into less favourable social positions. If thestatement that ’Equality of opportunity must yield Equalityof Results’ and if the fulfillment of Articles 16(1) in Art.16(4) ever needed a philosophical foundation it is furnishedby Rawls’ Theory of Justice and the Redress Principle. The interpretation of Arts. 16(1) and 16(4) came upfor consideration in several cases before this Court.Perhaps the most important of them is State of Kerala & Anv.v. N. M. Thomas & Ors.,(1) which was decided by a Bench ofseven Judges. The question was whether a certain rule whichgave a longer period of exemption to members belonging toScheduled Castes and Scheduled Tribes than to others frompassing certain departmental tests in order to be eligiblefor promotion from the Post of Lower Division Clerk to thatof Upper Division Clerk was not violative of Art. 16(1) ofthe Constitution. The Court by a majority of five to twoupheld the rule as valid. Ray, C. J., observed: "The rule of equality within Articles 14 and 16(1)will not be violated by a rule which will ensure equality ofrepresentation in the services for unrepresented classesafter satisfying the basic needs of efficiency ofadministration. Article 16(2) rules out some basis ofclassification including race, caste, descent, place ofbirth etc. Article 16(4) clarifies and explains thatclassification on the basis of backwardness does not fallwithin Article 16(2) and is legitimate for the purposes ofArticle 16(1). If preference shall be given to a particularunder-represented community other than a backward class orunder-represented State in an All India Service such a rulewill contravene Article 16(2). A similar rule givingpreference to an under-represented backward community isvalid and will not contravene articles 14, 16(1) and 16(2).Article 16(4) removes any doubt in this respect". (I) [1976] 1 SCR 906 @930-933.260 "The classification of employees belonging toScheduled Castes and Scheduled Tribes for allowing them anextended period of two years for passing the special testsfor promotion is a just and reasonable classification havingrational nexus to the object of providing equal opportunityfor all citizens in matters relating to employment orappointment to public office." xx xx xx "The Constitution makes a classification of ScheduledCastes and Scheduled Tribes in numerous provisions and givesa mandate to the State to accord special or favouredtreatment to them." xx xx xx "Article 335 of the Constitution states that claims ofmembers of the Scheduled Castes and Scheduled Tribes shallbe taken into consideration in the making of appointments tothe services and posts in connection with affairs of theState consistent with the maintenance of efficiency ofadministration. The impugned rule and the impugned ordersare related to this constitutional mandate." "Our constitution aims at equality of status andopportunity for all citizens including those who aresocially, economically and educationally backward. Theclaims of members Or backward classes require adequaterepresentation in legislative and executive bodies. Ifmembers of Scheduled Castes and Tribes, who are said by thisCourt to be backward classes, can maintain minimum necessaryrequirement of administrative efficiency, not only


representation but also preference may be given to them toenforce equality and to eliminate inequality. Articles 15(4) and 16(4) bring out the position of backward classes tomerit equality Special provisions are made for theadvancement of backward classes and reservations ofappointments and posts for them to secure adequaterepresentation. These provisions will bring out the contentof equality guaranteed by Articles 14, 15(1) and 16(1). Thebasic concept of equality is equality of opportunity forappointment. Preferential treatment for members of backwardclasses with due regard to administrative efficiency alone,can mean equality of opportunity for all citizens. Equalityunder261 Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having n nexus to the constitutionally permissible object. Preferential representation for the backward classes in services with due regard to administrative efficiency is permissible object and backward classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality". xx xx xx xx "All legitimate methods are available for equality of opportunity in service under Article 16(1). Article 16(1) is affirmative whereas Article 14 is negative in language. Article 16(4) indicates one of the methods of achieving equality embodied in Article 16(1)". Equally illuminating observations were made by Mathew,J., Beg., J., Krishna Iyer, J., and Fazal Ali, J., in theirseparate concurring opinions but I do not propose to extractthem in the interest of space. It is enough to mention thatall five learned judges who constituted the majority wereemphatic in repudiating the theory (propounded in earliercases) that Art. 16(4) was in the nature of an exception toArt. 16(1). All were agreed that Art. 16(4) was a facet, anillustration or a method of application of Art. 16(1). So,it is now no longer necessary to apologetically explain lawsaimed at achieving equality as permissible exceptions; itcan now be boldly claimed that such laws are necessaryincidents of equality. It all began with The General Manager), SouthernRailway v. Rangachari(1). Two circulars issued by theRailway Board reserving selection (promotional) posts inClass III of the Railway Service in favour of the members ofthe Scheduled Castes and the Scheduled Tribes, werequestioned in that case as offending Art. 16. It wascontended that Art. 16(4) applied only to reservation ofposts at the stage of initial appointment and not topromotional posts. The contention was rejected and it washeld that Art. 16(4) applied at the stage of initialappointment as well as at the stage of promotion byselection.It was in the case that observations were made tothe (1) [1962] 2 SCR 586.262effect that Art. 16(4) was in the nature of an exception toArt. 16(1), but, as we have seen such a view is no longertenable in view of State of Kerala & Anr. v. N. M. Thomas &


Ors. (supra). Much of the argument of the learned counsel for thepetitioners was anchored to, T. Devodasan v. Union ofIndia(z & Anr.(1) 17 1/2% of vacancies in an establishmentwere reserved for members of the scheduled Castes andScheduled Tribes. Alongside the reservation rule, thereoperated what is known as "the carry-forward rule" familiarto all Govt. employees and those connected with ’serviceproblems’. The carry-forward rule so operated in theparticular case that out of 45 appointments made by theGovernment 29 were from among the candidates belonging tothe Scheduled Castes and Scheduled Tribes. In other wordsthe reservation Came to 65% which was far in excess of the177% originally contemplated by the Reservation rule. Inthose circumstances, a Constitution Bench of this Court(Subba Rao, J. dissenting) declared the carry-forward rulebad. The Court did not strike down the carry-forward rule onthe ground that it was inherently vicious or on thehypothetical consideration that it was bound to lead tovicious results in the future if permitted to operatewithout inhibition. The judgment of the Court was foundedupon the viciousness exposed by the actual working of therule in practice. The learned judges indicated that therepercussions of such a rule would have to be watched fromyear to year. Another case upon which the petitioners placedreliance was M. R. Balaji & Ors. v. State, of Mysore(2). Inthat case the percent age of seats reserved in theEngineering and Medical colleges for the educationally andsocially backward classes and Scheduled Castes and ScheduledTribes came to 68% leaving only 32% of the seats for themerit pool. The Court held that generally and broadlyreservation should not exceed 50%. The actual percentage wasto depend upon the relevant prevailing circumstances in eachcase. As the reservation in that case for exceeded what wasgenerally and broadly permissible, the reservation was heldto be bad. There again the Court was concerned directly withthe immediate, actual, practical result of the Reservationrule. In A. Peeriakaruppan, etc. Y. State of Tamil Nadu &Ors.,(3) reservation of 41% of the seat in medical collegein the State of (1) [1964] 4 SCR 680. (2) [1963] Suppl. I SCR 439. (3) [1971] 2 SCR 430 @ 441-442.263Tamil Nadu for students coming from socially andeducationally back-ward classes was upheld. Hegde, J.,observed (at p. 441-442): "There is no basis for the contention that the reservation made for backward classes is excessive. We were not told why it is excessive. Undoubtedly we should not forget that it is against the immediate interest of the Nation to exclude from the portals of our medical colleges qualified and competent students but then the immediate advantages of the Nation have to be harmonised with its long range interests. It cannot be denied that unaided many sections of the people in this country cannot compete with the advanced sections of the Nation. Advantages secured due to historical reasons should not be considered as fundamental mental rights. Nation’s interest will be best served-taking a long range view-if the backward classes are helped to march forward and take their place in line with the advanced sections of the people. That is why in


Balaqi’s case [1931] Suppl 1 SCR (439), this Court held that the total of reservations for backward classes, scheduled castes and scheduled tribes should not ordinarily exceed 50% of the available seats. In the present case it is 41%. On the material before us we are unable to hold that the said reservation is excessive". In State of Punjab v. Hiralal & Ors.,(l) a rulereserving the first out of every ten vacancies to a memberof the Scheduled Castes and Scheduled Tribes and providingfor ’carry-forward’ of the vacancy if suitable candidate wasnot available was struck down by the High Court byvisualising various hypothetical cases which could lead toanomalous situations in which a person getting the benefitof reservation may jump over the heads of several of hisseniors not only in his own grade but even in higher grades.This Court reversed the decision of the High Courtobserving: "The extent of reservation to be made is primarily a matter for the State to decide. By this we do not mean to say that the decision of the State is not open to judicial re view. The reservation must be only for the purpose of giving adequate representation in the service to the Scheduled Castes, Scheduled Tribes and Backward Classes". xx xx (1) [1971] 3 SCR 267 @ 272, 273, 274.264 "The mere fact that the reservation made may give extensive benefits to some of the persons who have the benefit of the reservation does not by itself make the reservation bad. The length of the leap to be provided depends upon the gap to be covered". xx xx xx xx "There was no material before the High Court and thereis no material before us from which we can conclude that theimpugned order is violative of Art. 16(1). Reservation ofappointments under Art. 16(4) cannot be struck down onhypothetical grounds or on imaginary possibilities. He whoassails the reservation under that Art. must satisfactorilyestablish that there has been a violation of Art. 16(1)". The report of the Commissioner for Scheduled Castes andScheduled Tribes for 1977-78 and the ’Reports on theprogress made in the intake of Scheduled castes andScheduled Tribes against vacancies reserved for them inrecruitment and promotion categories in the Rail ways’ forthe half years ending March 31, 1974, March 31, 1975,September 30, 1976, March 31, 1977 and September 30, 1979were placed before us. they reveal how painfully slow andwoefully in significant has been progress achieved by themembers of the Scheduled Castes and Scheduled Tribes in thematter of their participation in the Railway administration.My brother Krishna Iyer J has extracted some of the factsand figures. I do not think it is necessary for me to referto them over again. It is sufficient to say that members ofthe Scheduled Castes and Scheduled Tribes far from acquiringany monopolistic or excessive representation over anycategory of posts (other than sweepers) are nowhere nearbeing adequately represented. Neither the Reservation rulenor the ’carry-forward for three years’ rule has resulted inany such ’disastrous’ consequences. The complaint of thepetitioners that the circulars and orders had resulted inexcessive representation of the Scheduled Castes andScheduled Tribes is without foundation generally or withreference to any particular year.


One of the contentions vehemently submitted by thelearned counsel for the petitioners was that efficiency ofadministration would suffer and safety of the travellingpublic would consequently be jeopardised if reservationswere made and promotions affected in the manner sought to bedone by the Railway Board. This is claimed by therespondents to be no more than a bogey. In the counteraffidavit filed on behalf of the Railway Board it has beenpointed out that minimum standards arc insisted upon forevery appointment265and in the case of candidates wanting in requisitestandards, those h with the highest marks are given specialintensive training to enable them to come up to therequisite standards. In the case of posts which involve thesafety of movement of trains there is no relaxation ofstandards in favour of candidates belonging to ScheduledCastes and Scheduled Tribes and they are required to passthe same rigid tests as other candidates. Therefore, we see that when posts whether at the stageof initial appointment or at the state of promotion arereserved or other preferential treatment is accorded tomembers of the Scheduled Castes, Scheduled Tribes and othersocially and economically backward classes, it is not aconcession or privilege extended to them, it is inrecognition of their undoubted Fundamental Right to Equalityof Opportunity and in discharge of the Constitutionalobligation imposed upon the state to secure to all itscitizens ’Justice, social, economic and political’ and’Equality to status and opportunity’, to assure ’the dignityof the individual’ among all citizens, to ’promote withspecial D. care the educational and economic interests ofthe weaker section of the people’, to ensure theirparticipation on equal basis in the administration of theaffairs of the country and generally to foster the ideal ofa ’Sovereign, Socialist, Secular, Democratic Republic’.Every lawful method is permissible to secure the duerepresentation of the Scheduled Castes and Scheduled Tribesin the public Services. There is no fixed ceiling toreservation or preferential treatment in favour of theScheduled Castes and Scheduled Tribes though generallyreservation may not be far in excess of fifty percent. Thereis no rigidity about the fifty percent rule which is only aconvenient guideline laid down by Judges. Every case must bedecided with reference to the present practical resultsyielded by the application of the particular rule ofpreferential treatment and not with reference tohypothetical results which the application of the rule mayyield in the future. Judged in the light of this discussionI am unable to find anything illegal or unconstitutional inany one of the impugned orders and circulars. Each order andcircular has been individually discussed by my brotherKrishna Iyer J with whose reasoning and conclusions I agreeand to which I wish to add no more. PBR Petitions dismissed.266

Akhil bhartiya Soshit Sangh vs UOI

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Transcript of Akhil bhartiya Soshit Sangh vs UOI